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###### Environmental Protection Agency

          - 40 CFR Part 52
          - [EPA-R10-OAR-2024-0373; FRL-12413-01-R10]

# AGENCY:

Environmental Protection Agency (EPA).

# ACTION:

Proposed rule.

# SUMMARY:

The Environmental Protection Agency (EPA) is proposing to approve Washington State Implementation Plan (SIP) revisions to the Southwest Clean Air Agency (SWCAA) air quality regulations submitted by the State of Washington, through the Department of Ecology (Ecology) on June 22, 2023. The revisions were submitted in part to respond to the EPA's June 12, 2015 “SIP call” in which the EPA found a provision in the Washington SIP applicable in the area regulated by SWCAA to be substantially inadequate, 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 the submitted revisions to the substantially inadequate provision corrects the 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submitted that were not identified in the 2015 SSM SIP call and therefore the EPA is not proposing action on those withdrawn portions.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 January 9, 2025.

# ADDRESSES:

                        Submit your comments, identified by Docket ID No. EPA-R10-OAR-2024-0373, 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                         *ruddick.randall@epa.gov.*

# 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 Clean Air Act (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 Washington Administrative Code (WAC) 173-400-107 was intended to be an affirmative defense, it was not consistent with the requirements of the CAA. Therefore, the EPA issued a SIP call to Washington Department of Ecology with respect to this provision in their jurisdiction. 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 others, on December 28, 2023 (88 FR 89582).

                    On January 12, 2022, the EPA issued Findings of Failure to Submit (FFS) to 12 air agencies, including SWCAA, 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.[1]                                          In response, on June 22, 2023, Washington submitted revisions to SWAPCA Rule 400-107 to comport with EPA's SSM Policy Applicable to SIPs along with other SIP revisions not identified in the 2015 SSM SIP call.                

                    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”).[2]                                          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 the 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 the 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.”                

                    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.[3]                                          This is in keeping with the EPA's interpretation of the CAA in our 2015 SSM SIP call 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                           ( print page 99178)                        jurisdiction of Federal courts to assess penalties or other forms of relief authorized in sections 113 and 304.[4]                                          As explained in the 2015 SSM SIP call, SWAPCA Rule 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.[5] 

                    Southwest Clean Air Agency (SWCAA), a local air agency within the State of Washington primarily adopts, implements, and enforces State rules within its jurisdiction.[6]                                          In some instances, however, SWCAA [7]                                          adopts its own rules and standards in lieu of statewide provisions. As also stated in our 2015 SSM SIP call, “SWAPCA 400-107 Excess Emissions” is nearly identical to WAC 173-400-107. Therefore, the EPA issued a SIP call with respect to “SWAPCA 400-107 Excess Emissions” as well. The detailed rationale for issuing the SIP call to Washington can be found in the 2015 SSM SIP Action and preceding proposed actions.[8 9] 

We are proposing to approve SWCAA's revisions to SWAPCA Rule 400-107 submitted on June 22, 2023, along with additional SIP revisions discussed below. The SIP revisions subject to this action are only applicable within SWCAA's jurisdiction, do not change State or other local air agency regulations, nor do they relax existing Federal protections under the CAA.

## II. Analysis of SIP Submission

### A. The Provision Subject to the 2015 SSM SIP Call

In the 2015 SSM SIP Action, the EPA identified SWAPCA Rule 400-107 as inconsistent with CAA requirements because it 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. Subsequent to the EPA's January 2022 FFS, Washington, on behalf of SWCAA, submitted a SIP revision on June 22, 2023, that revises the version of SWAPCA Rule 400-107 in the SIP to be consistent with the 2015 SSM policy articulated in the 2015 SSM SIP Action.

The EPA last approved SWAPCA Rule 400-107 on February 26, 1997 (60 FR 8264). On September 1, 2016, SWCAA recodified “SWAPCA” Rule 400-107 to “SWCAA” Rule 400-107 reflecting the agency name change from “Southwest Air Pollution Control Authority” (SWAPCA) to “Southwest Clean Air Agency” (SWCAA). Accordingly, the June 22, 2023 SIP submittal references “SWCAA” Rule 400-107 rather than the “SWAPCA” Rule 400-107 we referenced in our 2015 SSM SIP call.

                    We reviewed Washington's June 22, 2023, SIP submittal regarding revisions to SWCAA Rule 400-107 and found the submission technically and administratively complete. We subsequently issued a completeness determination letter to Washington on August 8, 2023.[10]                                          This completeness determination stopped the 18-month sanctions clock for SWCAA's jurisdiction that was started by the January 2022 FFS. This completeness determination did not address the other SIP revisions included in the June 22, 2023 SIP submittal.                

                    The EPA has assessed the impact of the D.C. Circuit decision with respect to the specific affirmative defense provision at issue in SWAPCA Rule 400-107. We have concluded that the previously stated basis for including SWAPCA Rule 400-107 in the 2015 SSM SIP call is 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.” [11] 

                    We are proposing to determine that the revised SWCAA Rule 400-107 is consistent with EPA's 2015 SSM policy articulated in the 2015 SSM SIP Action. Specifically, SWCAA's revisions clarify that all excess emissions are violations of the applicable statute, rule, permit or regulatory order. SWCAA also removed the language in Rule 400-107 stating that excess emissions determined to be unavoidable are not subject to penalty and added language making it clear that unavoidable excess emissions are subject to SWCAA's order authorities in SWCAA Rule 400-230(3), (4), and (6), but not subject to                     *SWCAA's*                     civil penalty authority. Finally, SWCAA Rule 400-107 now states that in any Federal enforcement action under 42 U.S.C. 7413 (Federal enforcement) or 7604 (Citizen suits) the court may determine what weight, if any, to assign the permitting authority's determination that an excess emissions event does or does not qualify as unavoidable under the criteria in SWCAA Rule 400-107.                

We are also proposing to find that the revisions to SWCAA Rule 400-107 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 for SWCAA in the June 22, 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 SWCAA Rule 400-040(1).[12]                                          Therefore, the EPA is not proposing action on the withdrawn provision and will not cover it here. The remaining SIP revisions not subject to the 2015 SSM SIP call in SWCAA Rules 400-040, 400-070, and 400-081 clarify applicability, remove redundant language, revise cross-references as necessary to align with the recodification of RCW,[13]                                          and remove excess emission provisions not                           ( print page 99179)                        consistent with EPA's 2015 SSM policy.[14] 

                    In its June 22, 2023 SIP submittal, Washington requests approval of revisions to SWCAA Rule 400-040,                     *General Standards for Maximum Emissions;*                     SWCAA Rule 400-070,                     *General Requirements for Certain Source Categories;*                     and SWCAA Rule 400-081,                     *Startup and Shutdown.*                     Many of the revisions submitted are non-substantive changes such as adding quotation marks for clarity and updating the State effective date to September 10, 2021.                

#### SWCAA Rule 400-040, General Standards for Maximum Emissions

                    The EPA last approved portions of SWCAA Rule 400-040 on April 10, 2017 (82 FR 17139). Our 2017 approval did not revise our February 26, 1997, approval (62 FR 8624) of SWCAA Rule 400-040(1)(a), State effective September 21, 1995. Similarly, the revisions we are proposing to approve in this action do not revise SWCAA Rule 400-040(1) as approved in 1997 and 2017 because Washington withdrew the revisions to SWCAA Rule 400-040(1) from their submission in a letter dated July 24, 2024. The remaining submitted revisions to SWCAA Rule 400-040 SIP provisions make grammatical changes to improve clarity, broaden the scope of the requirement to take reasonable precautions to prevent fugitive dust from becoming airborne to any “activity that generates” fugitive dust rather than just any “source,” and update the State effective date of all provisions to September 9, 2021. Consistent with past practice, SWCAA Rules 400-040(2) and (4) were not submitted for approval, and therefore outside the scope of this action.[15]                                          The EPA is proposing to approve the remaining submitted SIP revisions to SWCAA Rule 400-040 that were not withdrawn with a State effective date of September 10, 2021.                

#### SWCAA Rule 400-070, General Requirements for Certain Source Categories

                    The EPA last approved portions of SWCAA Rule 400-070 on April 10, 2017 (82 FR 17139). Our 2017 approval did not revise our February 26, 1997, approval (62 FR 8624) of SWCAA Rule 400-070(2)(a), State effective September 21, 1995. Washington has since revised SWCAA Rule 400-070(2)(a) removing a limited exception (15 minute per eight consecutive hours) for hog fuel boilers in subparagraph (2)(a) from otherwise applicable opacity standards in SWCAA Rule 400-040 and SWCAA Rule 400-050(1) to be consistent with the 2015 SSM policy articulated in the EPA's 2015 SSM SIP action. Washington requests the 1995 version of SWCAA Rule 400-070(2)(a) be removed from the SIP and replaced with this revised version.[16]                                          Washington also updated the State effective date for all of SWCAA Rule 400-070 to September 10, 2021.                

                    Consistent with past practice, Washington did not submit the following SWCAA Rules subsections for approval into the SIP: 400-070(3)(b); 400-070(5); 400-070(6); 400-070(7); 400-070(8)(c); 400-070(9); 400-070(10); 400-070(11); 400-070(12); 400-070(14); 400-070(15)(c); and 400-070(16).[17]                                          Those previously excluded provisions, along with the newly added 400-070(16), were not submitted for approval, and therefore outside the scope of this action. The EPA is proposing to approve the remaining submitted SIP revisions to SWCAA Rule 400-070 with a State effective date of September 10, 2021.                

#### SWCAA Rule 400-081, Startup and Shutdown

The EPA last approved portions of SWCAA Rule 400-081 on April 10, 2017 (82 FR 17139). Non-substantive changes were made removing redundant language and to clarify terms used. No substantive changes were made to SWCAA Rule 400-081 since our 2017 approval. The EPA is proposing to approve the revisions to SWCAA Rule 400-081 (State effective September 10, 2021) with no exceptions.

## III. Proposed Action

                    The EPA is proposing to approve and incorporate by reference into the Washington SIP the revisions submitted on June 22, 2023, except for those withdrawn by Washington in a letter dated July 24, 2024.[18]                                          We are also proposing to remove the 1995 version of SWCAA Rule 400-070(2)(a) as described in section II of this preamble. Specifically, we are proposing to approve and incorporate by reference in 40 CFR 52.2470(c)—                    *Table 8—Additional Regulations Approved for the Southwest Clean Air Agency (SWCAA) Jurisdiction,*                     the following revised regulations with the exception of those subsections either withdrawn or not submitted:                
    - SWCAA Rule 400-040, General Standards for Maximum Emissions                      (State effective September 10, 2021);                
    - SWCAA Rule 400-070, General Requirements for Certain Source Categories                      (State effective September 10, 2021);                
    - SWCAA Rule 400-081, Startup and Shutdown                      (State effective September 10, 2021);                
    - SWCAA Rule 400-107, Excess Emissions                      (State effective September 10, 2021).                

The proposed revisions, upon finalization, will apply specifically to the jurisdictions of the Southwest Clean Air Agency in Washington State.

## IV. Incorporation by Reference

                    In this document, the 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, the EPA proposes to incorporate by reference the provisions described in sections II and III of this document. The 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 a 1995 version of SWCAA Rule 400-070(2)(a) from the incorporation by reference at 40 CFR 52.2470. The EPA has made, and will continue to make, these documents generally available through                     *https://www.regulations.gov*                     and at the EPA Region 10 Office (please contact the person identified in the                     **FOR FURTHER INFORMATION CONTACT**                     section of this preamble for more information).                

## 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, the 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:
    - 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);                           ( print page 99180)      
    - Does not impose an information collection burden under the provisions of the Paperwork Reduction Act ( 44 U.S.C. 3501  et seq. );                
    - Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act ( 5 U.S.C. 601  et seq. );                
    - Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 ( Pub. L. 104-4 );
    - Does not have federalism implications as specified in Executive Order 13132  ( 64 FR 43255 , August 10, 1999);
    - Is not subject to Executive Order 13045  ( 62 FR 19885 , April 23, 1997) because it approves a State program;
    - Is not a significant regulatory action subject to Executive Order 13211  ( 66 FR 28355 , May 22, 2001);
    - 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; and

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. The 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.” The 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. The 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 rulemaking 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.

# 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: December 3, 2024.

Casey Sixkiller,

Regional Administrator, Region 10.

# Footnotes

1.                             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                         *www.regulations.gov,*                         Docket ID No. EPA-HQ-OAR-2021-0863.                    
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2.                             See                         *Environ. Comm. Fl. Elec. Power*                         v.                         *EPA,*                         94 F.4th 77, 115 (D.C. Cir. 2024).                    
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3.                                                     *Id.*                         at 114-15.                    
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4.                             As stated in our supplemental notice of proposed rulemaking 79 FR 55920 at 55929.                         *See also*80 FR 33840 at 33853, 33870.                    
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5.                                                     *See*79 FR 55920 at 55952.                         *See also*80 FR 33974.                    
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6.                             SWCAA has jurisdiction over most air pollution sources in Clark, Cowlitz, Lewis, Skamania, and Wahkiakum Counties, except for sources located on Tribal lands and sources subject to Federal or State jurisdiction.                    
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7.                             SWCAA was formerly known as Southwest Air Pollution Control Authority (SWAPCA).                    
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8.                                                     *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).                    

9.                                                     *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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10.                             See                         *301_SWCAA SSM SIP Call FFS Completeness Letter.pdf,*                         included in the docket for this action.                    
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11.                             See 94 F.4th at 114-15.                    
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12.                             See                         *201_state submittal supplement_SWCAA Partial Withdrawal Request Letter—Ecology.pdf*                         and                         *202_state submittal supplement_SWCAA Partial Withdrawal Request Letter—SWCAA.pdf*                         included in the docket for this action.                    
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13.                             The Revised Code of Washington (RCW), previously RCW 70.94 was recodified as RCW 70A.15.                    
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14.                             See Appendix B of                         *102_state submittal_SWCAA 400 (SSM)—SIP Revision.pdf.*
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15.                             See 40 CFR 52.2470(c), Table 8.                    
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16.                             EPA approved the 1995 version of SWCAA Rule 400-070(2)(a) on September 21, 1997 (62 FR 8264).                    
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17.                             See 40 CFR 52.2470(c), Table 8.                    
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18.                             See                         *201_state submittal supplement_SWCAA Partial Withdrawal Request Letter—Ecology.pdf*                         and                         *202_state submittal supplement_SWCAA Partial Withdrawal Request Letter—SWCAA.pdf*                         included in the docket for this action.                    
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[FR Doc. 2024-28804 Filed 12-9-24; 8:45 am]

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