[Federal Register Volume 88, Number 115 (Thursday, June 15, 2023)]
[Proposed Rules]
[Pages 39210-39216]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-12700]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R10-OAR-2019-0647; FRL-10975-01-R10]


Air Plan Approval; WA; Excess Emissions, Startup, Shutdown, and 
Malfunction Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve State Implementation Plan (SIP) revisions submitted by the 
State of Washington, through the Department of Ecology on November 12, 
2019. The revisions were submitted by Washington in response to an 
EPA's June 12, 2015 ``SIP call'' in which 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. EPA is proposing approval of 
the SIP revisions and proposing to determine that removal of the 
substantially inadequate provision corrects the deficiency identified 
in the June 12, 2015, SIP call.

DATES: Comments must be received on or before July 17, 2023.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
OAR-2019-0647, 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 
[email protected].

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. Geographic Applicability
    B. The Provision Subject to the 2015 SIP Call
    C. Additional SIP Revisions Submitted But Not Specified in the 
2015 SIP Call
III. Proposed Action
IV. Incorporation by Reference
V. Statutory and Executive Orders Review

I. Background

    On February 22, 2013, the EPA issued a Federal Register notice of 
proposed rulemaking outlining EPA's policy at the time with respect to 
SIP provisions related to periods of SSM. EPA analyzed specific SSM SIP 
provisions and explained how each one either did or did not comply with 
the Clean Air Act (CAA) with regard to excess emission events.\1\ For 
each SIP provision that EPA determined to be inconsistent with the CAA, 
EPA proposed to find that the existing SIP provision was substantially 
inadequate to meet CAA requirements and thus proposed to issue a SIP 
call under CAA section 110(k)(5).\2\ On September 17, 2014, EPA issued 
a supplemental proposal revising what the Agency had previously 
proposed on February 22, 2013, in light of a D.C. Circuit decision that 
determined EPA does not have authority under the CAA to create or 
approve affirmative defense provisions applicable to private civil 
suits.\3\ EPA outlined its updated policy that affirmative defense SIP 
provisions are not consistent with CAA requirements. EPA proposed in 
the supplemental proposal document to apply its revised interpretation 
of the CAA to specific affirmative defense SIP provisions and proposed 
SIP calls for those provisions where appropriate.\4\
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    \1\ 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 (Feb. 22, 2013).
    \2\ The term ``SIP Call'' refers to the requirement for a 
revised SIP in response to a finding by the EPA that a SIP is 
``substantially inadequate'' to meet CAA requirements pursuant to 
CAA section 110(k)(5), titled ``Calls for plan revisions.''
    \3\ The term affirmative defense provision means a state law 
provision in a SIP that specifies particular criteria or 
preconditions that, if met, would purport to preclude a court from 
imposing monetary penalties or other forms of relief for violations 
of SIP requirements in accordance with CAA section 113 or CAA 
section 304. 80 FR 33839, June 12, 2015.
    \4\ See79 FR 55920, September 17, 2014.
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    On June 12, 2015, pursuant to CAA section 110(k)(5), 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.
    In October 2020, EPA issued a SSM Memorandum (2020 Memorandum).\5\ 
Importantly, the 2020 Memorandum stated that it ``did not alter in any 
way the determinations made in the 2015 SSM SIP Action that identified 
specific state SIP provisions that were substantially inadequate to 
meet the requirements of the Act.'' Accordingly, the 2020 Memorandum 
had no direct impact on the SIP call issued to Washington in 2015. The 
2020 Memorandum did, however, indicate EPA's intent at the time to 
review SIP

[[Page 39211]]

calls that were issued in the 2015 SSM SIP Action to determine whether 
EPA should maintain, modify, or withdraw particular SIP calls through 
future agency actions.
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    \5\ October 9, 2020, memorandum ``Inclusion of Provisions 
Governing Periods of Startup, Shutdown, and Malfunctions in State 
Implementation Plans,'' from Andrew R. Wheeler, Administrator.
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    On September 30, 2021, EPA withdrew the 2020 Memorandum and 
announced EPA's return to the policy articulated in the 2015 SSM SIP 
Action (2021 Memorandum).\6\ As articulated in the 2021 Memorandum, SIP 
provisions that contain exemptions or affirmative defense provisions 
are not consistent with CAA requirements and, therefore, generally are 
not approvable if contained in a SIP submission. This policy approach 
is intended to ensure that all communities and populations, including 
overburdened communities, receive the full health and environmental 
protections provided by the CAA.\7\ The 2021 Memorandum also retracted 
the prior statement from the 2020 Memorandum of EPA's plans to review 
and potentially modify or withdraw particular SIP calls. That statement 
no longer reflects EPA's intent. EPA intends to implement the 
principles laid out in the 2015 SSM SIP Action as the agency takes 
action on SIP submissions, including the November 12, 2019 SIP 
submittal provided by Washington in response to the 2015 SIP call.
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    \6\ September 30, 2021, memorandum ``Withdrawal of the October 
9, 2020, Memorandum Addressing Startup, Shutdown, and Malfunctions 
in State Implementation Plans and Implementation of the Prior 
Policy,'' from Janet McCabe, Deputy Administrator.
    \7\ See 80 FR 33840 (June 12, 2015).
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    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. 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. Washington 
subsequently submitted a SIP revision on November 12, 2019, in response 
to the SIP Call issued in the 2015 SSM SIP Action. In its submission, 
Washington removed WAC 173-400-107 from the SIP in its entirety.
    Washington also included SIP revisions that are not subject to the 
2015 SSM SIP in the 2019 SIP submittal. These additional SIP revisions 
set alternate emission standards for short-term modes of operations of 
sources such as startup, shutdown, and scheduled maintenance for some 
source categories; establish the process for defining facility-specific 
alternate emission standards; remove excess emission provisions not 
consistent with EPA's 2015 SSM policy; revise cross-references as 
necessary to align with updates to the analogous Federal laws or 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 EPA's 
removal of WAC 173-400-107 from the Washington SIP.

II. Analysis of SIP Submission

A. Geographic Applicability

    EPA's analysis and proposed actions related to WAC 173-400 in the 
2019 SIP submittal similarly apply to geographic areas and source 
categories under the direct jurisdiction of Ecology and Benton Clean 
Air Agency (BCAA), a local air agency in Washington, because BCAA's 
SIP-approved regulations state, in Article 1, Section 1.03, that BCAA 
implements and enforces WAC 173-400 ``as in effect now and including 
all future amendments, except where specific provisions of BCAA 
Regulation 1 apply.'' The 2019 SIP submittal contains no substantive 
changes to the minor differences between the two agencies' 
jurisdictional applicability of subparts of WAC 173-400.

B. The Provision Subject to the 2015 SIP Call

    In the 2015 SSM SIP Action, EPA identified WAC 173-400-107 as 
inconsistent with CAA requirements because it contained affirmative 
defense provisions. Washington then submitted a SIP revision on 
November 12, 2019, that removed WAC 173-400-107 from the SIP.
    We are proposing to find that the removal of WAC 173-400-107 from 
the Washington SIP will satisfy the 2015 SIP Call because the removal 
of WAC 173-400-107 from the SIP will no longer provide for an 
affirmative defense.

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

    Washington adopted additional revisions to the State's excess 
emissions provisions that were not specified in the 2015 SSM SIP Call. 
These revisions were adopted in three different state rulemaking 
actions, two in 2018 for provisions in WAC 173-400, General Air 
Regulations for Air Pollution Sources, and one additional rulemaking in 
2019 revising WAC 173-405, Kraft Pulping Mills; WAC 173-410, Sulfite 
Pulping mills; and WAC 173-415, Primary Aluminum Plants.
    WAC 173-400, General Air Regulations for Air Pollution Sources.
    In its November 12, 2019 SIP submission, Washington requests 
approval of revisions to WAC 173-030, Definitions; WAC 173-400-040, 
General Standards for maximum emissions; 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; and 
WAC 173-400-171, Public involvement. Many of the revisions are non-
substantive changes.
    WAC 173-400-030, Definitions. 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'').\8\ Most 
definitions in WAC 173-400-030 remain unchanged since our last 
approval; \9\ 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 
EPA approve all of WAC 173-400-030 as submitted on November 12, 2019, 
except definition (96) related to toxic air pollutants or odors, 
because it is outside the scope of CAA section 110 requirements for 
SIPs.\10\ A complete redline/strikeout analysis of the updated 
definitions in WAC 173-400-030 is included in the docket for this 
action.\11\ 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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    \8\ 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.
    \9\ EPA reviewed those definitions and approved them in a 
previous action (85 FR 10302, February 24, 2020).
    \10\ Definition (96) was excluded for the same reasons in our 
February 24, 2020 approval.
    \11\ See 102_state submittal_SIP_SSM_400_405_410_415.pdf, 
included in the docket for this action.
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    The two revisions to existing definitions in WAC 173-400-030 were 
to:
    (32) \12\ ``Excess emissions'': to clarify that the term also 
includes emissions

[[Page 39212]]

above limits established in permits or orders, including alternative 
emission limits. This definition comports with our 2015 SSM Policy; 
\13\ and
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    \12\ ``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 November 3, 2014 
action (79 FR 59653). 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 the 
Washington SIP, and it is those versions that EPA is proposing to 
revise in this action.
    \13\ See 80 FR 33840, specifically page 33842.
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    (38) \14\ ``Federally enforceable'': to include emission 
limitations during startup and shutdown.
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    \14\ ``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:
    `` `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 Policy,\15\
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    \15\ See 80 FR 33840, especially page 33912.
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    ``Hog fuel'' to define what has been used as a `term 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, is 
generally in keeping with the Federal definition for biomass or bio-
based solid fuel for boilers and process heaters in EPA's National 
Emission Standard for Hazardous Air Pollutants (NESHAP) for Major 
Sources: Industrial, Commercial, and Institutional Boilers and Process 
Heaters, codified at 40 C.F.R. Part 63, Subpart DDDDD (hereinafter 
``Subpart DDDDD''); \16\
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    \16\ See specifically 40 CFR 63.7575.
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    (83) ``Shutdown'' and (89) ``Startup:'' to clarify the general 
meanings of the terms \17\ for purposes of implementation of WAC 173-
400. the meaning of these terms is further clarified in WAC 173-400-
040-(2) in the context of startup and shutdown requirements for 
boilers, similar to these those terms are used in Subpart DDDDD;
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    \17\ 40 CFR 63.7575.
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    (97) ``Transient mode 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 operations 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 implementation of WAC 
173-400-040(2)(e). The definition is nearly verbatim from, and is 
substantively the same as, EPA's Boiler NESHAP.\18\
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    \18\ 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) \19\
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    \19\ 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 2019 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, EPA is proposing to approve the above 
changes to Washington's definitions under WAC 173-400-030.
    WAC 173-400-040, General Standards for Maximum Emissions.
    Washington made numerous revisions to WAC 173-400-040, many of 
which are non-substantive typographical and stylistic changes that are 
not specifically identified in this preamble. Several revisions are 
conditioned to only take effect upon EPA's removal of WAC 173-400-107 
from the SIP, which as mentioned above, we are proposing to do in this 
action. In other words, the redline/strike through version of 
Washington's SIP rules included in the submittal set forth in some 
cases two versions of the same rule, one of which is intended to become 
effective upon EPA removal of -107 from the SIP, and the other intended 
to be automatically rendered ineffective as a matter of state law.
    Substantive changes were made to -040(2) Visible emissions. That 
provision establishes a general limit on visible emissions, prohibiting 
emissions greater than twenty percent opacity for more than three 
minutes during any one-hour period, except as specified in the rule. 
The effect of the State's November 12, 2019 submittal is to remove some 
exemptions from WAC 173-400-040(2) and replace them with AELs that 
apply during transient modes of operation. In the 2015 SSM SIP Action, 
EPA recommended states consider seven criteria when developing AELs to 
replace automatic or discretionary exemptions from otherwise applicable 
SIP requirements. These recommended criteria assure the alternative 
emission limitations meet basic CAA requirements. The AELs in 
Washington's submittal are specific to visible emissions (opacity) from 
certain pre-existing biomass boilers \20\ during soot blowing, grate 
cleaning, and planned startups and shutdowns as well as boilers and 
lime kilns during refractory curing.
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    \20\ Notably, applicability is limited to only hog fuel or wood-
fired boilers (defined in WAC 173-400-030) that utilize only dry 
particulate matter controls such as multiclone, fabric filter or dry 
electrostatic precipitator (DESP).
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    EPA evaluated whether the alternative requirements provided by 
Washington's 2019 SIP submission are consistent with the Agency's 2015 
SSM SIP Action, including the seven criteria recommended therein.\21\ 
In its 2019 submittal, Washington provided an analysis of these 
criteria as applied to the SIP revisions. For the reasons explained 
below, EPA finds that the proposed AELs in WAC 173-400-040(2) \22\ are 
consistent with the recommended criteria set forth in that policy. We 
are therefore proposing to approve these provisions into the Washington 
SIP.
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    \21\ See, ``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, section XI.D.
    \22\ As provided in Washington's 2019 SIP submittal.
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    Washington's 2019 submittal includes detailed analyses of potential 
impacts from the proposed SIP revisions, which EPA finds show 
compliance with NAAQS and other CAA requirements such as visibility 
should not be negatively affected. This is, in part, because the AELs 
do not equate to a relaxation of limits or an increase in emissions. 
Rather, provisions in Washington's SIP that serve to exempt or 
otherwise excuse excess emissions entirely (de facto unlimited 
emissions) are being replaced with more stringent emissions 
limitations. We find that particulate matter (PM) emissions will not 
increase as a result of the revisions for two reasons: (1) Washington's 
revised rules require compliance with AELs during transient modes of 
operations, whereas the prior version of the rules (including the SIP-
called version of WAC 173-400-107) allowed sources to routinely avoid 
penalties for excess emissions; and (2) the pre-existing emissions 
limits remain in place for non-transient modes of operation for these 
sources.

[[Page 39213]]

    As explained above, Washington's November 12, 2019 submittal 
includes AELs applicable to three narrow circumstances: soot blowing or 
grate cleaning at hog fuel or wood-fired boilers; emissions from 
startup or shutdown at hog fuel or wood-fired boilers; and curing of 
furnace refractory in a lime kiln or boiler. EPA's analysis of each of 
the seven criteria as they apply to these AELs is set forth below.
    (1) The revision is limited to specific, narrowly defined source 
categories using specific control strategies (e.g., cogeneration 
facilities burning natural gas and using selective catalytic 
reduction).
    WAC 173-400-040(2)(a), Soot blowing and grate cleaning. The 
applicability of this AEL for visible emissions [opacity] is limited to 
hog fuel or wood-fired boilers that use only dry particulate controls. 
In addition, soot blowing and grate cleaning are work practice 
activities that decrease emissions. If these activities are not 
conducted, heat transfer efficiency decreases resulting in 
stoichiometric increases in emissions as more fuel combustion is 
required per unit of heat transferred. In addition, the increased 
combustion shortens the expected useful life of both the unit and 
control device.
    WAC 173-400-040(2)(e), Planned startups and shutdowns. The 
applicability of AELs for visible emissions (opacity) is limited to hog 
fuel or wood-fired boilers in operation before January 24, 2018, that 
use only dry particulate matter controls.
    WAC 173-400-040(2)(f), Furnace refractory curing. The applicability 
of this AEL is limited to furnace refractory in lime kilns and boilers. 
The AEL does not specify a control strategy. However, EPA believes 
control strategy specificity is unnecessary because the requirement to 
engage emission controls as soon as possible, -040(2)(f)(v), is 
likewise unspecific to type of control strategy.
    (2) Use of the control strategy for this source category is 
technically infeasible during startup or shutdown periods.
    WAC 173-400-040(2)(a), Soot blowing and grate cleaning. During soot 
blowing and grate cleaning activities, it is not technically feasible 
to meet the SIP's general 20% opacity limit due to operational and 
control device limitations as permitted in compliance with the CAA. EPA 
also notes this AEL is not specific to startup or shutdown, but instead 
applies to activities that are themselves work practices and serve to 
decrease emissions. If soot blowing and grate cleaning activities are 
not conducted, heat transfer efficiency decreases resulting in 
stoichiometric increases in emissions as more fuel combustion is 
required per unit of heat transferred. In addition, the increased 
combustion shortens the expected useful life of both the unit and 
control device. The control devices are not designed to handle these 
activities in a manner ensuring opacity is limited to 20%.
    WAC 173-400-040(2)(e), Planned startups and shutdowns. It is 
technically infeasible, as reflected in (5)(c)(1) of Table 3 in Subpart 
DDDDD, to engage dry particulate control devices during boiler startup 
and shutdown. Engaging these controls risks damaging them as per 
manufacturer's instructions.
    WAC 173-400-040(2)(f), Furnace refractory curing. This AEL is not 
specific to startup or shutdown. However, the applicability of the AEL 
is limited to only those periods when compliance with the 20% opacity 
limit would be impracticable due to the inherent nature of conducting 
the curing process consistent with manufacturer's instructions.
    (3) The alternative emission limitation requires that the frequency 
and duration of operation in startup or shutdown mode are minimized to 
the greatest extent practicable.
    WAC 173-400-040(2)(a), Soot blowing and grate cleaning. This AEL is 
limited in both duration and frequency. Specifically, the AEL is 
limited to no more than one fifteen-minute period in any eight 
consecutive hours. The AEL also requires the source schedule the 
activity for the same approximate time(s) each day and notify the 
permitting authority in writing of the schedule before using the AELs.
    EPA also notes that this AEL is not specific to startup or 
shutdown, but instead applies to activities that are themselves work 
practices and serve to decrease emissions. If these activities are not 
conducted, heat transfer efficiency decreases resulting in 
stoichiometric increases in emissions as more fuel combustion is 
required per unit of heat transferred. In addition, the increased 
combustion shortens the expected useful life of both the unit and 
control device.
    WAC 173-400-040(2)(e), Planned startups and shutdowns. The 
durations of these AELs are modeled after the Federal AELs required for 
these types of boilers under Subpart DDDDD. Washington's AELs do not 
impose a frequency limit, but frequency is intrinsically limited as 
affected types of sources are mainly industrial or commercial boilers 
operated to facilitate production. Therefore, EPA anticipates that 
operators will work to maximize total operational hours and minimize 
downtime as a practical matter.
    WAC 173-400-040(2)(f), Furnace refractory curing. This AEL is not 
specific to startup or shutdown, but duration is limited by the 
requirement to engage the emissions controls as soon as possible during 
the curing process while following manufacturers' instructions, and in 
no event more than 36 hours from the commencement of refractory curing. 
Frequency is also limited as a practical matter to the installation or 
repair of refractory.
    (4) As part of its justification of the SIP revision, the state 
analyzes the potential worst-case emissions that could occur during 
startup and shutdown based on the applicable alternative emission 
limitation.
    WAC 173-400-040(2)(e), Planned startups and shutdowns. Washington's 
submittal estimates the potential worst-case emission scenario from 
this AEL based on the potential for startup or shutdown of a boiler 
coinciding with the maximum four-hourly PM2.5 concentrations 
over a three-year period from monitoring data, which was 130 [mu]g/
m\3\. In this scenario, Washington estimates the probability of the 
AELs resulting in an exceedance of the PM2.5 24-hour NAAQS 
is once in 810 days. Washington also provides evidence in its submittal 
demonstrating that the assumed high value of 130 [mu]g/m\3\ used for 
this estimate is likely attributable to wildfires and not anthropogenic 
sources. Therefore, it is likely this probability is an overestimate. 
The State also noted that the estimates are based on data from a time 
representing source operations when emissions were likely higher than 
would be expected under the amended rules because less stringent 
requirements applied during these periods than would now be required by 
the AELs. The results of these conservative scenarios are that it is 
unlikely the AELs will cause or contribute to a violation of the 
PM2.5 24-hour NAAQS.\23\
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    \23\ Given PM2.5 24-hour NAAQS is calculated based on 
the 3-year average of the 98th percentile of valid data 
concentrations (see 40 CFR Appendix N to Part 50 4.04.2(a)), 
exceeding up to 7 days per year (if all 365 days are validated) in 
all three years would not constitute a violation. Therefore, 
potential to exceed once every 810 days is unlikely to result in a 
violation that is calculated on a 1,095-day cycle. Note: the 1 in 
810 days probability is based on a 4-hour average that is likely 
higher than those caused by startups and shutdowns occurring when 
exceptions that equated to no limit were easy to obtain. Those 
exceptions are being removed from the SIP and there is no reasonable 
expectation that sources will increase emissions during these 
transient modes of operation since the pre-existing exceptions 
pathway offers no protection from Federal enforcement.

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[[Page 39214]]

    WAC 173-400-040(2)(a), Soot blowing and grate cleaning, and WAC 
173-400-040(2)(f), Furnace refractory curing. The State explained in 
its submittal that these events should not increase and emissions under 
the AEL are likely to be lower than emissions during the worst-case 
boiler startup and shutdown scenario analyzed above. In other words, 
EPA believes the results are also representative of a worst-case 
scenario for these AELs and indicate it is unlikely the AELs will cause 
or contribute to a violation of the PM2.5 24-hour NAAQS.
    (5) The alternative emission limitation requires that all possible 
steps are taken to minimize the impact of emissions during startup and 
shutdown on ambient air quality.
    WAC 173-400-040(2)(a), Soot blowing and grate cleaning. The AEL is 
limited in both duration and frequency as discussed under criteria (3) 
above. The AEL also requires sources schedule the activity for the same 
approximate time(s) each day and notify the permitting authority in 
writing of the schedule before using the AEL. Additionally, any source 
utilizing the AEL is required to maintain contemporaneous records 
sufficient to demonstrate compliance. EPA also notes that soot blowing 
and grate cleaning are relatively straightforward, but necessary 
maintenance activities for the continued operation of control 
equipment. In this context, EPA believes the AEL requirements represent 
all practically available steps to minimize emissions during these 
events.
    WAC 173-400-040(2)(e), Planned startups and shutdowns. This AEL 
provides two options: comply with a temporary forty percent opacity 
limit for a period not exceeding three minutes in any hour 
((2(e)(vi)(A)); or comply with each of the management practices in 
(2)(e)(vi)(B)(I) through (V). EPA agrees that allowing sources to 
increase opacity to forty percent for short periods during startup and 
shutdown represents a reasonable application of this criterion. 
Additionally, the option in (2)(e)(vi)(B) requires developing and 
implementing a plan to minimize startup and shutdown according to 
manufacturer's recommended procedure, (2)(e)(vi)(B)(V).
    WAC 173-400-040(2)(f), Furnace refractory curing. In addition to 
the forty percent opacity limit, the AEL requires all practical steps 
be taken to minimize emissions. Specifically, sources must engage 
emissions controls as soon as possible while following manufacturers' 
instructions and using clean fuel.
    (6) The alternative emission limitation requires that at all times, 
the facility is operated in a manner consistent with good practice for 
minimizing emissions and the source uses best efforts regarding 
planning, design, and operating procedures.
    WAC 173-400-040(2)(a), Soot blowing and grate cleaning. This AEL 
applies to activities that are themselves work practices for maximizing 
efficiency while minimizing emissions and are conducted in part to 
facilitate compliance with the otherwise applicable emissions 
limitation. If these activities are not conducted, heat transfer 
efficiency decreases resulting in stoichiometric increases in emissions 
as more fuel combustion is required per unit of heat transferred. In 
addition, the increased combustion shortens the expected useful life of 
both the unit and control device. As discussed above, the AEL is 
limited in both duration and frequency and requires the source schedule 
the activity for the same approximate time(s) each day and notify the 
permitting authority in writing of that schedule before using the AEL. 
EPA also notes that soot blowing and grate cleaning are relatively 
straightforward, but necessary maintenance activities for the continued 
operation of control equipment. In this context, EPA believes the soot 
blowing and grate cleaning AEL requirements represent all practically 
available steps to minimize emissions during these events.
    WAC 173-400-040(2)(e), Planned startups and shutdowns. The AEL 
includes a requirement that a source develop and implement a written 
startup and shutdown plan that minimizes the AEL period according to 
manufacturer's recommended procedures, operate all continuous 
monitoring systems, as well as document how compliance conditions were 
met.
    WAC 173-400-040(2)(f), Furnace refractory curing. The AEL requires 
good practices for minimizing emissions throughout the duration of the 
refractory curing process. Specifically, sources must engage emissions 
controls as soon as possible while following manufacturers' 
instructions and using clean fuel. Frequency of refractory curing is 
also limited as a practical matter to the installation or repair of 
refractory.
    (7) The alternative emission limitation requires that the owner or 
operator's actions during startup and shutdown periods are documented 
by properly signed, contemporaneous operating logs, or other relevant 
evidence.
    WAC 173-400-040(2)(a), Soot blowing and grate cleaning. Subsection 
(2)(a)(ii)(C) requires the owner or operator maintain contemporaneous 
records sufficient to demonstrate compliance which must include date, 
start, and stop time of each occurrence, and the results of opacity 
readings conducted during the occurrence.
    EPA also notes that, as stated above, this AEL is not specific to 
startup or shutdown, but instead applies to activities that are 
themselves work practices and serve to decrease emissions.
    WAC 173-400-040(2)(e), Planned startups and shutdowns. Subsection 
(2)(e)(vii) requires the facility to maintain records to demonstrate 
compliance including the start and stop times of individual phases and 
documentation of which AEL was chosen and how the conditions of that 
option were met.
    WAC 173-400-040(2)(f), Furnace refractory curing. This AEL includes 
requirements to notify the permitting authority at least one working 
day prior to commencing the curing process, engage the emissions 
controls as soon as possible during the curing process, follow 
manufacturer's instructions including temperature increase rates and 
holding times, and provide a copy of those instructions to the 
permitting authority. It is in the source's own interest to follow 
manufacturer's instructions as failure to do so can cause spalling or 
catastrophic failure of the refractory resulting in additional 
operation costs associated to repair or replace the damaged refractory.
    (8) EPA's Proposed Conclusion Regarding the AEL Criteria.\24\
---------------------------------------------------------------------------

    \24\ Regarding the seven criteria analysis above, we note 
``malfunction'' was not mentioned because the State did not submit 
any AELs for malfunctions.
---------------------------------------------------------------------------

    Based on the analysis discussed above, EPA is proposing to conclude 
the three AELs included in Washington's SIP submittal are consistent 
with the criteria set forth in our 2015 SSM Policy. Therefore, we are 
proposing to approve these revisions into the Washington SIP.
    WAC 173-400-070, Emission standards for certain source categories. 
Washington added language tying effective dates to EPA's removal of -
107, updated various cross-references, and made numerous non-
substantive typographical, stylistic, and clarifying revisions which we 
will not detail here. Washington revised the provisions for wigwam and 
silo burners rendering the operation of them illegal statewide and 
thereby reducing overall potential emissions. The State also removed 
visible emissions exemptions for orchard heating devices and hog fuel 
boilers. The exemption for hog fuel boilers was replaced with the AELs 
in

[[Page 39215]]

WAC 173-400-040(2)(a)(ii) by reference. The catalytic cracking unit 
section was obsolete and subsequently deleted because corresponding 
Federal regulations, which the State adopts by reference, have more 
stringent requirements and to reduce unnecessary duplication of Federal 
requirements.
    WAC 173-400-081, Emission limits during startup and shutdown. 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 EPA 
as a SIP amendment.
    WAC 173-400-082 Alternative emission limit that exceeds an emission 
standard in the SIP. 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 EPA approves the 
new limit into the SIP.
    WAC 173-400-171 Public notice and opportunity for public comment. 
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.
    The State's 2019 revisions also affect these three source-specific 
regulations: WAC 173-405, Kraft Pulping Mills; WAC 173-410, Sulfite 
Pulping Mills; and WAC 173-415, Primary Aluminum Plants. The primary 
impact of these revisions is to incorporate by reference the AELs 
described above for hog fuel boilers, wood-fired boilers, and 
refractory curing into these source-category specific rules. In other 
words, these revisions do not create additional exemptions or 
alternatives to the SIP's general opacity limit but reiterate the 
requirement to comply with applicable AELs as stated in WAC 173-400-
040(2) during corresponding transient modes of operation.
    Most of the revisions are analogous to, and in several instances 
direct adoptions of, the revisions in WAC 173-400 discussed above, 
including: removing exemptions for excess emissions and references to 
state enforcement discretion provisions, updating cross-references, 
AELs for soot blowing, grate cleaning, startup and shutdown of hog-fuel 
boilers, and refractory curing. The analyses provided in the State's 
submission as well as EPA's analyses stated above equally apply to the 
sources regulated under WAC 173-405, -410, and -415. Therefore, EPA is 
proposing to approve the requested revisions for those reasons.

III. Proposed Action

    EPA is proposing to approve and incorporate by reference into the 
Washington SIP the revisions Washington submitted on November 12, 2019. 
This action includes removal of the provision WAC 173-400-107--
identified as inconsistent with CAA requirements--from the Washington 
SIP, as well as revisions to WAC 173-400-030, -400-040, -400-070, -400-
081, -400-082, -400-171, -405-040, -410-040, -415-030; the addition of 
WAC 173-415-075; and the removal of 173-405-077, -410-067, and -415-
070.
    The proposed revisions, upon finalization, will apply specifically 
to the jurisdictions of Washington Department of Ecology and Benton 
Clean Air Agency. Under the applicability provisions of WAC 173-405-
012, WAC 173-410-012, and WAC 173-415-012, BCAA does not have 
jurisdiction for kraft pulp mills, sulfite pulping mills, and primary 
aluminum plants. For these sources, Ecology retains statewide, direct 
jurisdiction over these sources.

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 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).
    The EPA is also proposing to remove Washington Administrative Code 
173-405-077, -410-067, and -415-070, as described in sections II and 
III of this document, from the Washington State Implementation Plan, 
which is incorporated by reference under 1 CFR part 51.

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:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 
2023);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not subject to Executive Order 13045 (62 FR 19885, 
April 23, 1997) because it approves a state program;
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     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 minority populations and low-income 
populations to the

[[Page 39216]]

greatest extent practicable and permitted by law. EPA defines 
environmental justice (EJ) as ``the fair treatment and meaningful 
involvement of all people regardless of race, color, national origin, 
or income with respect to the development, implementation, and 
enforcement of environmental laws, regulations, and policies.'' EPA 
further defines the term fair treatment to mean that ``no group of 
people should bear a disproportionate burden of environmental harms and 
risks, including those resulting from the negative environmental 
consequences of industrial, governmental, and commercial operations or 
programs and policies.'' The air agency did not evaluate environmental 
justice considerations as part of its SIP submittal; the CAA and 
applicable implementing regulations neither prohibit nor require such 
an evaluation. EPA did not perform an EJ analysis and did not consider 
EJ in this action. Due to the nature of the action being taken here, 
this action is expected to have a neutral to positive impact on the air 
quality of the affected area. Consideration of EJ is not required as 
part of this action, and there is no information in the record 
inconsistent with the stated goal of E.O. 12898 of achieving 
environmental justice for people of color, low-income populations, and 
Indigenous peoples.
    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 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: June 8, 2023.
Casey Sixkiller,
Regional Administrator, Region 10.
[FR Doc. 2023-12700 Filed 6-14-23; 8:45 am]
 BILLING CODE 6560-50-P


