[Federal Register Volume 85, Number 18 (Tuesday, January 28, 2020)]
[Proposed Rules]
[Pages 4921-4928]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-01465]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R10-OAR-2019-0710; FRL-10004-71-Region 10]


Approval and Promulgation of Implementation Plans; Washington; 
Puget Sound Clean Air Agency, Regulation I

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve revisions to the Washington State Implementation Plan (SIP) 
that were submitted by the Washington Department of Ecology (Ecology) 
in coordination with the Puget Sound Clean Air Agency (PSCAA). This 
proposed revision would update certain PSCAA regulations currently in 
the SIP, remove obsolete regulations, and approve a subset of updated 
Ecology regulations to apply in PSCAA's jurisdiction.

DATES: Written comments must be received on or before February 27, 
2020.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
OAR-2019-0710 at https://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. The EPA may publish any 
comment received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The EPA 
will generally not consider comments or comment contents located 
outside of the primary submission (i.e., on the web, cloud, or other 
file sharing system). For additional submission methods, the full EPA 
public comment policy, information about CBI or multimedia submissions, 
and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Jeff Hunt, EPA Region 10, 1200 Sixth 
Avenue--Suite 155, Seattle, WA 98101, at (206) 553-0256, or 
hunt.jeff@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, it is intended to refer to the EPA. This 
SUPPLEMENTARY INFORMATION section is arranged as follows:

Table of Contents

I. Background for Proposed Action
II. Changes to PSCAA Regulation I
    A. WSR 04-08-017--Incorporation by Reference of Chapter 173-400 
WAC
    B. WSR 01-16-034--``Trivial'' Emissions Source Categories
    C. WSR 12-01-067--Federally Enforceable Regulatory Orders
III. Application of WAC 173-400-020
IV. The EPA's Proposed Action
    A. Regulations To Approve and Incorporate by Reference Into the 
SIP
    B. Approved But Not Incorporated by Reference Regulations
    C. Regulations To Remove From the SIP
    D. Scope of Proposed Action
V. Incorporation by Reference
VI. Statutory and Executive Order Reviews

I. Background for Proposed Action

    On January 27, 2014, Ecology submitted revisions to update the 
general air quality regulations contained in Chapter 173-400 Washington 
Administrative Code (WAC), which the EPA approved in three phases on 
October 3, 2014 (79 FR 59653), November 7, 2014 (79 FR 66291), and 
April 29, 2015 (80 FR 23721).\1\ Under the revised applicability 
provisions of WAC 173-400-020 approved into the SIP on October 3, 2014, 
the regulations contained in Chapter 173-400 WAC apply statewide, ``. . 
. except for specific subsections where a local authority has adopted 
and implemented corresponding local rules that apply only to sources 
subject to local jurisdiction as provided under Revised Code of 
Washington (RCW) 70.94.141 and 70.94.331.'' \2\ Therefore, the EPA's 
approval of Ecology's January 2014 submittal applies only to geographic 
areas and source categories under Ecology's direct jurisdiction. We 
stated that we would address the revised Chapter 173-400 WAC 
regulations as they apply to local clean air agency jurisdictions on a 
case-by-case basis in separate, future actions. On December 20, 2019, 
the Director of Ecology, as the Governor's designee for SIP revisions, 
submitted a request to update the air

[[Page 4922]]

quality regulations in the SIP as they apply to PSCAA's jurisdiction in 
40 CFR 52.2470(c), Table 7--Additional Regulations Approved for the 
Puget Sound Clean Air Agency (PSCAA) Jurisdiction. PSCAA's jurisdiction 
consists of King, Kitsap, Pierce, and Snohomish counties, excluding 
certain facilities discussed in section IV.D. Scope of Proposed Action. 
PSCAA's jurisdiction also excludes Indian reservation land or any other 
area where the EPA or an Indian tribe has demonstrated that a tribe has 
jurisdiction (except non-trust land within the exterior boundaries of 
the Puyallup Indian Reservation, as described in section IV.D. Scope of 
Proposed Action).
---------------------------------------------------------------------------

    \1\ In subsequent actions on September 29, 2016 (81 FR 66823) 
and October 6, 2016 (81 FR 69385) we made minor corrections to our 
previous approval of Chapter 173-400 WAC and approved revised WAC 
provisions that incorporated by reference the most recent changes to 
the federal regulations.
    \2\ For a more detailed discussion see page 39352 of the EPA's 
proposed approval of WAC 173-400-020 (79 FR 39351, July 10, 2014).
---------------------------------------------------------------------------

    Appendix A of the SIP revision shows how the submitted regulatory 
updates would apply to PSCAA's jurisdiction. These revisions can be 
summarized in three general categories, which are discussed in more 
detail in sections II and III. The first category consists of updates 
to the PSCAA Regulation I provisions currently in the SIP. These 
updated provisions apply in lieu of, or serve as a supplement to, the 
statewide Chapter 173-400 WAC provisions, as shown in Table 1. The 
second category consists of those parts of Chapter 173-400 WAC 
incorporated by reference in Regulation I. The EPA's proposed approval 
of the Chapter 173-400 WAC provisions incorporated by reference in 
Regulation I would be subject to the same exceptions that apply to 
Ecology's direct jurisdiction, as shown in Table 2. For example, as 
part of the January 2014 submittal of Chapter 173-400 WAC, Ecology did 
not submit for approval those provisions related to the regulation of 
toxic air pollutants, because such provisions are outside the scope of 
SIPs under Clean Air Act (CAA) section 110. The last category consists 
of certain parts of Chapter 173-400 WAC which do not have a direct 
corollary under PSCAA Regulation I, nor are they incorporated by 
reference in Regulation I. In these cases, Ecology and PSCAA requested 
that the EPA revise the SIP to include the most recently approved 
updates to Chapter 173-400 WAC to apply in PSCAA's jurisdiction, as 
shown in Table 3.

II. Changes to PSCAA Regulation I

    The EPA last approved updates to PSCAA Regulation I on September 
17, 2013 (78 FR 57073); however, many of the SIP-approved provisions 
relating to pre-construction permitting of new and modified stationary 
sources (called the new source review or NSR permitting program) date 
back to the 1990s.\3\ PSCAA's updates to Regulation I are documented in 
the Washington State Register (WSR) entries included in the docket for 
this action. Each WSR gives a redline/strikeout of changes to the 
regulations, with a brief summary describing the purpose of the 
changes. Additional information can also be found in the proposed WSR 
actions.\4\ The majority of changes over the years were routine in 
nature, such as revising the regulations to account for inflation, 
incorporating revised federal regulations, or generally revising the 
regulatory language for clarity. The EPA's complete line by line review 
of changes to the PSCAA regulations is included in the docket for this 
action, and will not be described in detail here.\5\ The three most 
significant changes to PSCAA Regulation I are discussed below.
---------------------------------------------------------------------------

    \3\ See 59 FR 44324 (August 29, 1994), 60 FR 33734 (June 29, 
1995), 62 FR 42216 (August 6, 1997), and 63 FR 19658 (April 21, 
1998).
    \4\ http://lawfilesext.leg.wa.gov/law/wsr/agency/PugetSoundCleanAirAgency.htm.
    \5\ See ``Puget Sound comparison_IBR_old vs current.pdf'' and 
``Puget Sound comparison_not IBR_old vs. current.pdf'' included in 
the docket.
---------------------------------------------------------------------------

A. WSR 04-08-017--Incorporation by Reference of Chapter 173-400 WAC

    On March 25, 2004 (WSR 04-08-017), PSCAA made a major overhaul of 
Regulation I in order to rely on the statewide NSR permitting program 
requirements contained in Chapter 173-400 WAC promulgated by Ecology. 
PSCAA's stated purpose was, ``To create a more consistent notice of 
construction process throughout the state of Washington and to 
facilitate the United States Environmental Protection Agency's approval 
of the state implementation plan.'' PSCAA created a new section 6.01 
``Components of a New Source Review Program'' which generally 
incorporates by reference the NSR permitting provisions contained in 
Chapter 173-400 WAC, as shown in Table 2. PSCAA also revised or 
repealed sections of Regulation I that were duplicative of the WAC and 
therefore obsolete.\6\ This included deleting most of the NSR-related 
definitions in Regulation I, section 1.07 in order to rely on the 
definitions incorporated by reference in WAC 173-400-030. PSCAA also 
repealed sections 6.06 ``Public Notice,'' 6.07 ``Order of Approval--
Order to Prevent Construction,'' and 6.08 ``Emission Reduction Credit 
Banking'' to rely on the corollaries in the WAC, including WAC 173-400-
171 ``Public notice and opportunity for public comment,'' WAC 173-400-
111 ``Processing notice of construction applications for sources, 
stationary sources and portable sources,'' WAC 173-400-131 ``Issuance 
of emission reduction credits,'' WAC 173-400-136 ``Use of emission 
reduction credits (ERC),'' and WAC 173-400-840 ``Emission offset 
requirements.'' Lastly, PSCAA made minor updates to the cross 
references in Regulation I, sections 3.04, 6.03, 6.09, 9.03, 9.04, 
9.08, and 12.03 to reflect the revised regulatory structure.
---------------------------------------------------------------------------

    \6\ WAC 173-400-110(1)(c)(ii), which PSCAA has not adopted, 
makes clear that the term ``new source'' includes a modification to 
an existing source. However, PSCAA has adopted Ecology's definition 
of ``new source'' in WAC 173-400-030(56). WAC 173-400-030(56) 
specifically defines a ``new source'' as including 
``modifications.'' Thus, there is no substantive difference between 
PSCAA's and Ecology's NSR rules in this respect.
---------------------------------------------------------------------------

    WAC 173-400-700 through 173-400-750 implement the Prevention of 
Significant Deterioration (PSD) new source review permitting program 
for major stationary sources in attainment and unclassifiable areas. 
Regulation I, section 6.01 incorporates by reference WAC 173-400-700 
through 173-400-750, but clearly states that only Ecology and EFSEC 
have authority to issue permits under WAC 173-400-700 through 173-400-
750 within PSCAA's geographic area. PSCAA has advised EPA that it 
incorporates by reference WAC 173-400-700 through 173-400-750 for 
purposes such as working on permit coordination with Ecology, enforcing 
existing PSD permit conditions not yet incorporated into Title V 
permits, and determining violations for inspected facilities that 
failed to obtain the necessary PSD permits. Therefore, PSCAA is not 
requesting, and the EPA is not proposing to approve, the authority to 
issue PSD permits under WAC 173-400-700 through 173-400-750 for PSCAA's 
direct permitting jurisdiction (Table 7). The EPA will retain our 
current approval of WAC 173-400-700 through 173-400-750 in the SIP 
under Ecology and EFSEC direct permitting jurisdiction (see 40 CFR 
52.2470(c), Tables 2 and 3), which will continue to apply within 
PSCAA's geographic area.
    PSCAA also incorporates by reference WAC 173-400-800 through 173-
400-860, which implement the new source review permitting program for 
major stationary sources in nonattainment areas (major nonattainment 
NSR). The EPA approved WAC 173-400-800 through 173-400-860 for 
Ecology's direct permitting jurisdiction on November 7, 2014 (79 FR 
59653), with minor revisions to reflect updated federal citations on 
October 6, 2016 (81 FR 69385). In connection with our November 7, 2014 
approval, we reviewed WAC 173-400-800 through 173-400-860 pursuant to 
the federal

[[Page 4923]]

regulatory requirements in existence at that time and discussed the 
fact that the EPA's 2008 PM2.5 New Source Review Rule (73 FR 
28321, May 16, 2008), had been remanded to the EPA by the U.S. Court of 
Appeals for the District of Columbia Circuit. See 79 FR 43345, 43347 
(July 25, 2014) (proposed action); 79 FR 59653 (final action). EPA's 
2008 PM2.5 New Source Review Rule has since been replaced by 
a revised implementation rule published August 24, 2016, which imposed 
additional NSR requirements for PM2.5 nonattainment areas 
(81 FR 58010). Because there are currently no nonattainment areas 
within PSCAA's jurisdiction or Washington State for any criteria 
pollutant, including PM2.5, the EPA did not review PSCAA's 
incorporation by reference of WAC 173-400-800 through 173-400-860 for 
consistency with the newly revised PM2.5 implementation 
rule; nor does Ecology or PSCAA have an obligation to submit rule 
revisions to address the 2016 PM2.5 implementation rule at 
this time. However, we note that the federal major nonattainment NSR 
requirements remain unchanged for all other criteria pollutants since 
our review and approval of WAC 173-400-800 through 173-400-860. We are 
therefore proposing to approve of PSCAA's incorporation by reference of 
WAC 173-400-800 through 173-400-860 as meeting the current major 
nonattainment NSR requirements for all criteria pollutants except 
PM2.5.

B. WSR 01-16-034--``Trivial'' Emissions Source Categories

    Effective June 6, 1996, the Washington Legislature amended the 
Washington Clean Air Act (Revised Code of Washington 70.94), requiring 
Ecology to establish NSR permitting exemptions based on category, size, 
or emissions thresholds representing ``. . . trivial levels of 
emissions that do not pose a threat to human health or the 
environment.'' Ecology implemented this statutory change by 
establishing emission unit and activity exemptions under WAC 173-400-
110(4), and exemptions based on emissions thresholds under WAC 173-400-
110(5). The EPA approved these changes on April 29, 2015 (80 FR 
23721).\7\
---------------------------------------------------------------------------

    \7\ For a more detailed discussion please see page 39354 of our 
July 10, 2014 proposed rulemaking (79 FR 39351).
---------------------------------------------------------------------------

    Unlike Ecology, PSCAA already had ``trivial'' emissions source 
category exemptions for minor NSR permitting approved as part of the 
SIP under Regulation I, section 6.03 (62 FR 42216, August 6, 1997). 
Therefore, PSCAA opted to retain its existing minor NSR source category 
exemptions rather than incorporate by reference WAC 173-400-110(4) and 
(5). While there have been numerous updates to PSCAA's source category 
exemptions list since the EPA's last approval, the most significant 
revision occurred on July 12, 2001 (WSR 01-16-034). After a review of 
approximately 485 emission units permitted during calendar year 2000, 
PSCAA revised the list of source category exemptions to better focus on 
the most environmentally relevant source categories. As described in 
the supporting documents for PSCAA's rulemaking at that time, 
approximately one third of the units permitted in 2000 were gas 
stations, dry cleaners, or concrete batch plants which are already 
subject to Best Available Control Technology (BACT) requirements in 
other regulations approved into the SIP, such as Regulation II, section 
2.07 ``Gasoline Stations,'' which significantly reduce potential 
emissions from such source categories to levels expected to be 
inconsequential to attainment and maintenance of the National Ambient 
Air Quality Standards (NAAQS). Other minor NSR source category 
exemptions were derived from exemptions approved into the SIP for the 
South Coast Air Quality Management District (SCAQMD) and Bay Area Air 
Quality Management District (BAAQMD). ``Engineering Notes for Exemption 
List Development,'' included in the docket for this action, shows the 
process used by PSCAA in 2001 to update the set of minor NSR source 
category exemptions. Following 2001, PSCAA continued to update the set 
of minor NSR source category exemptions based on its evaluation and 
experience permitting certain source categories, including the 2012 
establishment of stand-alone performance standards for rock crushing in 
section 9.18 that reduce potential emissions to levels expected to be 
inconsequential for attainment and maintenance of the NAAQS.\8\ For 
more detail on the EPA's review of PSCAA's revised minor NSR source 
category exemption list, please see ``Puget Sound comparison IBR old vs 
current'' included in the docket for this action. Based on our review, 
the EPA is proposing to approve PSCAA's updated minor NSR source 
category exemption list based on our determination that the impact of 
emissions from such sources is inconsequential to attainment and 
maintenance of the NAAQS. We are also proposing to approve PSCAA's 
request to apply Regulation I, section 6.03 to act in lieu of those 
parts of WAC 173-400-110 for determining NSR applicability for PSCAA's 
permitting jurisdiction.
---------------------------------------------------------------------------

    \8\ See ``January 19 2018 e-Hunt SIP Support w attachments'' 
included in the docket.
---------------------------------------------------------------------------

    We note that our prior approval of section 6.03 included a broad 
director's discretion provision that allowed a minor NSR exemption for, 
``Any source that has been determined through review by the Control 
Officer not to warrant a `Notice of Construction and Application for 
Approval', due to the minimal amount and nature of air contaminants 
produced and potential to contribute to air pollution, with special 
reference to effects on health, economic and social factors, and 
physical effects on property.'' See 62 FR 42216, August 6, 1997. This 
provision, formerly in subsection (b)(17), is now in subsection 
(b)(10). It is the EPA's longstanding position that these types of 
broad director discretion provisions are not appropriate for approval 
into the SIP. See 69 FR 17368, 17370 (April 2, 2004); see also 80 FR 
33840, 33917-33918 (June 12, 2015). PSCAA and Ecology are not seeking 
approval of section 6.03(b)(10) and we are proposing to correct this 
error from our August 1997 action. Section 110(k)(6) of the CAA 
authorizes EPA, upon a determination that EPA's action approving, 
disapproving or promulgating any SIP or plan revision (or any part 
thereof) was in error, to revise such action as appropriate in the same 
manner as the approval, disapproval or promulgation. In making such a 
correction, EPA must provide such determination and the basis therefore 
to the State and the public. EPA is by this proposal notifying the 
PSCAA, Ecology and the public that EPA is removing Section 6.03(b)(17) 
from the SIP and from incorporation by reference into federal law.
    Lastly, we note that Article 6 in particular, but also other 
sections of PSCAA's regulations, reference the Code of Federal 
Regulations (CFR). For all references to the CFR in the PSCAA rules 
proposed for approval, not otherwise specified with an effective date, 
our proposed approval refers to the CFR with an effective date of July 
1, 2019. This date corresponds to PSCAA's last incorporation by 
reference of the CFR in Regulation 1, section 3.25.\9\
---------------------------------------------------------------------------

    \9\ As part of PSCAA's adoption by reference of the WAC in 
section 6.01, PSCAA explicitly did not adopt by reference WAC 173-
400-025 Adoption of Federal Rules in order to avoid conflicting with 
section 3.25. Therefore, for this proposed approval references to 
``in effect on the date in WAC 173-400-025'' as part of the PSCAA's 
adoption by reference of the WAC shall be July 1, 2019, consistent 
with section 3.25.

---------------------------------------------------------------------------

[[Page 4924]]

C. WSR 12-01-067--Federally Enforceable Regulatory Orders

    On December 15, 2015 (WSR 12-01-067), PSCAA added section 3.03(f) 
to Regulation I, which states, ``When an applicant requests a federally 
enforceable regulatory order to limit the potential to emit any air 
contaminant or contaminants pursuant to WAC 173-400-091, or requests a 
modification to such an order, the Control Officer or a duly authorized 
representative may issue such order consistent with the requirements of 
WAC 173-400-091 and 173-400-171 and Section 3.03(e) above. Regulatory 
orders issued pursuant to this section are effective the day the 
Control Officer or representative approves the order and may be 
appealed to the Pollution Control Hearings Board pursuant to Section 
3.17 of Regulation I and RCW 43.21B.310.'' We are proposing to approve 
this provision into the SIP because it implements authorities already 
approved or proposed for approval in the SIP and is consistent with CAA 
requirements.

III. Application of WAC 173-400-020

    As previously discussed, a local clean air agency generally has the 
authority under WAC 173-400-020 to establish local regulations to 
supplement, or act in lieu of, the statewide Chapter 173-400 WAC 
provisions for sources within its jurisdiction. This approach is 
consistent with our previous SIP actions for Benton Clean Air Agency 
(80 FR 71695, November 17, 2015) and Southwest Clean Air Agency (82 FR 
17136, April 10, 2017). Specifically, as part of the December 20, 2019 
submittal, PSCAA and Ecology requested that the EPA approve: Regulation 
I, section 1.01 ``Policy'' to replace WAC 173-400-010; section 3.04 
``Reasonably Available Control Technology'' to replace the 
corresponding provision in WAC 173-400-040(1)(c); section 3.25 
``Federal Regulations Reference Date'' to replace WAC 173-400-025; 
section 9.03 ``Emission of Air Contaminant: Visual Standard'' to 
replace WAC 173-400-040(2); section 9.07 ``Sulfur Dioxide Emission 
Standard'' to replace WAC 173-400-040(7); section 9.09 ``Particulate 
Matter Emission Standards'' to replace WAC 173-400-050 and 173-400-060; 
section 9.11(a) ``Emission of Air Contaminant: Detriment to Person or 
Property'' to replace WAC 173-400-040(6); section 9.13 ``Emission of 
Air Contaminant: Concealment and Masking Restricted'' to replace WAC 
173-400-040(8); section 9.15 ``Fugitive Dust Control Measures'' to 
replace WAC 173-400-040(9)(a); and section 12.03 ``Continuous Emission 
Monitoring Systems'' to replace WAC 173-400-105(7).
    We have completed a side by side comparison of the respective 
provisions and are proposing to approve these Regulation I provisions 
to apply in lieu of the corresponding Chapter 173-400 WAC provisions in 
the SIP.\10\ In addition, as discussed above regarding minor NSR source 
category exemptions, we are proposing to approve section 6.03 ``Notice 
of Construction'' to apply in lieu of those parts of WAC 173-400-110 
``New source review (NSR) for sources and portable sources'' for 
determining NSR applicability and Notice of Construction application 
procedures.\11\
---------------------------------------------------------------------------

    \10\ See ``PSCAA v WAC cross walk'' included in the docket for 
this action.
    \11\ PSCAA continues to incorporate WAC 173-400-110(1)(c)(i) and 
WAC 173-400-110(1)(d) by reference. All other provisions are 
replaced by PSCAA Regulation I, section 6.03 provisions.
---------------------------------------------------------------------------

    Lastly, for those parts of Chapter 173-400 WAC not already 
incorporated by reference in section 6.01, or replaced by the 
corresponding Regulation I provisions discussed above, PSCAA and 
Ecology requested that the EPA approve into the SIP for PSCAA's 
jurisdiction the most recently updated versions of Chapter 173-400 WAC, 
with certain exceptions as shown in Table 3. For example, WAC 173-400-
116 ``Increment Protection'' is part of the PSD program for permits 
issued directly by Ecology or EFSEC and, as discussed above, PSCAA does 
not issue such permits. PSCAA also did not request approval for WAC 
173-400-036 ``Relocation of Portable Sources'' because this is an 
optional State provision that a local clean air agency may adopt if it 
so chooses, but is not required to adopt.

IV. The EPA's Proposed Action

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

    The EPA is proposing to approve and incorporate by reference into 
the Washington SIP at 40 CFR 52.2470(c)--Table 7--Additional 
Regulations Approved for the Puget Sound Clean Air Agency (PSCAA) 
Jurisdiction, the PSCAA and Ecology regulations listed in Tables 1, 2, 
and 3 below for sources within PSCAA's jurisdiction. We note that some 
of the Regulation I provisions listed below remain unchanged since our 
previous approval. We are proposing to approve them as shown in Table 
1, however, to act in lieu of the corresponding Chapter 173-400 WAC 
provisions.

 Table 1--Puget Sound Clean Air Agency (PSCAA) Regulations for Proposed Approval and Incorporation by Reference
----------------------------------------------------------------------------------------------------------------
                                                                  State/local
       State/local citation               Title/subject         effective date             Explanation
----------------------------------------------------------------------------------------------------------------
                                                  Regulation I
----------------------------------------------------------------------------------------------------------------
1.01.............................  Policy.....................        11/01/99  Replaces WAC 173-400-010.
1.07.............................  Definitions................        12/01/18  Except the definition ``toxic
                                                                                 air pollutant (TAP) or toxic
                                                                                 air contaminant.''
3.03(f)..........................  General Regulatory Orders..        02/01/12
3.04.............................  Reasonably Available               07/01/12  Except 3.04(e). Replaces WAC 173-
                                    Control Technology.                          400-040(1)(c).
3.25.............................  Federal Regulation                 11/01/19  Replaces WAC 173-400-025.
                                    Reference Date.
5.03.............................  Applicability of                   11/01/16  Except 5.03(a)(8)(Q) and
                                    Registration Program.                        5.03(b)(5).
5.05.............................  Registration Requirements..        02/01/17  Except 5.05(b)(1) and (2).
6.01.............................  Components of New Source           05/01/13  Except the parenthetical in
                                    Review Program.                              6.01(b) which states ``as
                                                                                 delegated by agreement with the
                                                                                 US Environmental Protection
                                                                                 Agency, Region 10.'' See table
                                                                                 below for revised Chapter 173-
                                                                                 400 WAC provisions incorporated
                                                                                 by reference.

[[Page 4925]]

 
6.03.............................  Notice of Construction.....        11/01/15  Except 6.03(b)(10). Section 6.03
                                                                                 replaces WAC 173-400-110,
                                                                                 except WAC 173-400-110(1)(c)(i)
                                                                                 and (1)(d) which are
                                                                                 incorporated by reference.
6.09.............................  Notice of Completion.......        05/01/04
6.10.............................  Work Done Without an               09/01/01
                                    Approval.
7.09.............................  General Reporting                  02/01/17  Excluding toxic air pollutants.
                                    Requirements for Operating
                                    Permits.
9.03.............................  Emission of Air                    05/01/04  Except 9.03(e). Replaces WAC 173-
                                    Contaminant: Visual                          400-040(2).
                                    Standard.
9.04.............................  Opacity Standards for              05/01/04  Except 9.04(d)(2) and 9.04(f).
                                    Equipment with Continuous
                                    Opacity Monitoring Systems.
9.07.............................  Sulfur Dioxide Emission            05/19/94  Replaces WAC 173-400-040(7).
                                    Standard.
9.08.............................  Fuel Oil Standards.........        05/01/04  Approved only as it applies to
                                                                                 the regulation of criteria
                                                                                 pollutants.
9.09.............................  Particulate Matter Emission        06/01/98  Replaces WAC 173-400-050(1) &
                                    Standards.                                   (3) and 173-400-060.
9.11(a)..........................  Emission of Air                    04/17/99  Replaces WAC 173-400-040(6).
                                    Contaminant: Detriment to
                                    Person or Property.
9.13.............................  Emission of Air                    06/09/88  Replaces WAC 173-400-040(8).
                                    Contaminant: Concealment
                                    and Masking Restricted.
9.15.............................  Fugitive Dust Control              04/17/99  Replaces WAC 173-400-040(9)(a).
                                    Measures.
9.16.............................  Spray-Coating Operations...        12/02/10
9.18.............................  Crushing Operations........        03/02/12
12.03............................  Continuous Emission                11/01/15  Replaces WAC 173-400-105(7).
                                    Monitoring Systems.
----------------------------------------------------------------------------------------------------------------

    We are also proposing to approve PSCAA's incorporation by reference 
of certain Chapter 173-400 WAC provisions, subject to the exceptions 
listed in Table 2. We note that these exceptions, primarily relating to 
the regulation of toxic air pollutants, are consistent with our prior 
approvals of Chapter 173-400 WAC for Ecology's direct permitting 
jurisdiction.

      Table 2--Washington Department of Ecology Regulations Incorporated by Reference in PSCAA Regulation I
----------------------------------------------------------------------------------------------------------------
                                                                  State/local
       State/local citation               Title/subject         effective date             Explanation
----------------------------------------------------------------------------------------------------------------
                       Chapter 173-400 WAC, General Regulations for Air Pollution Sources
----------------------------------------------------------------------------------------------------------------
173-400-030......................  Definitions................        12/29/12  Except: 173-400-030(91).
173-400-081......................  Startup and shutdown.......        04/01/11
173-400-110......................  New source review (NSR) for        12/29/12  173-400-110(1)(c)(i) and 173-400-
                                    sources and portable                         110(1)(d) only.
                                    sources.
173-400-111......................  Processing notice of               07/01/16  Except: 173-400-111(3)(h);--The
                                    construction applications                    part of 173-400-111(8)(a)(v)
                                    for sources, stationary                      that says, ``and 173-460-
                                    sources and portable                         040,''; 173-400-111(9).
                                    sources.
173-400-112......................  Requirements for new               12/29/12
                                    sources in nonattainment
                                    areas.
173-400-113......................  Requirements for new               12/29/12  Except: 173-400-113(3), second
                                    sources in attainment or                     sentence.
                                    unclassifiable areas.
173-400-117......................  Special protection                 12/29/12
                                    requirements for federal
                                    Class I areas.
173-400-171......................  Public Notice and                  07/01/16  Except:--The part of 173-400-
                                    Opportunity for Public                       171(3)(b) that says, ``or any
                                    Comment.                                     increase in emissions of a
                                                                                 toxic air pollutant above the
                                                                                 acceptable source impact level
                                                                                 for that toxic air pollutant as
                                                                                 regulated under chapter 173-460
                                                                                 WAC''; 173-400-171(12).
173-400-200......................  Creditable stack height and        02/10/05
                                    dispersion techniques.
173-400-560......................  General order of approval..        12/29/12  Except:--The part of 173-400-
                                                                                 560(1)(f) that says, ``173-460
                                                                                 WAC''.
173-400-800......................  Major stationary source and         4/01/11  EPA did not review WAC 173-400-
                                    major modification in a                      800 through 860 for consistency
                                    nonattainment area.                          with the August 24, 2016 PM2.5
                                                                                 implementation rule (81 FR
                                                                                 58010); nor does PSCAA have an
                                                                                 obligation to submit rule
                                                                                 revisions to address the 2016
                                                                                 PM2.5 implementation rule at
                                                                                 this time.

[[Page 4926]]

 
173-400-810......................  Major stationary source and        07/01/16
                                    major modification
                                    definitions.
173-400-820......................  Determining if a new               12/29/12
                                    stationary source or
                                    modification to a
                                    stationary source is
                                    subject to these
                                    requirements.
173-400-830......................  Permitting requirements....        07/01/16
173-400-840......................  Emission offset                    07/01/16
                                    requirements.
173-400-850......................  Actual emissions plantwide         07/01/16
                                    applicability limitation
                                    (PAL).
173-400-860......................  Public involvement                  4/01/11
                                    procedures.
----------------------------------------------------------------------------------------------------------------

    Table 3 shows the updated Chapter 173-400 WAC provisions that PSCAA 
and Ecology requested to apply within the SIP for PSCAA's jurisdiction. 
We note that many of the exclusions are identical to the exclusions for 
Ecology's direct jurisdiction; however, Table 3 also excludes those 
parts of the WAC explicitly replaced by the Regulation 1 provisions in 
Table 1. We also note that PSCAA and Ecology did not submit Chapter 
173-400 WAC provisions that remain unchanged since our last approval 
(60 FR 28726, June 2, 1995) or recently revised WAC updates that have 
not yet been approved for Ecology's direct jurisdiction.

   Table 3--Washington Department of Ecology Regulations for Proposed Approval and Incorporation by Reference
----------------------------------------------------------------------------------------------------------------
                                                                  State/local
       State/local citation               Title/subject         effective date             Explanation
----------------------------------------------------------------------------------------------------------------
                       Chapter 173-400 WAC, General Regulations for Air Pollution Sources
----------------------------------------------------------------------------------------------------------------
173-400-020......................  Applicability..............        12/29/12
173-400-040......................  General Standards for              09/16/18  173-400-040(1)(a) & (b), 173-400-
                                    Maximum Emissions.                           040(4); and 173-400-040(9)(b)
                                                                                 only.
173-400-091......................  Voluntary Limits on                  4/1/11  9/20/93 version continues to be
                                    Emissions.                                   approved under the authority of
                                                                                 CAA Section 112(l) with respect
                                                                                 to Section 112 hazardous air
                                                                                 pollutants. See 60 FR 28726
                                                                                 (June 2, 1995).
173-400-105......................  Records, Monitoring and            09/16/18  Except: 173-400-105(7).
                                    Reporting.
173-400-118......................  Designation of Class I, II,        12/29/12
                                    and III Areas.
173-400-131......................  Issuance of Emission                04/1/11
                                    Reduction Credits.
173-400-136......................  Use of Emission Reduction          12/29/12
                                    Credits (ERC).
173-400-151......................  Retrofit Requirements for           2/10/05
                                    Visibility Protection.
173-400-175......................  Public Information.........         2/10/05
----------------------------------------------------------------------------------------------------------------

B. Approved But Not Incorporated by Reference Regulations

    In addition to the regulations proposed for approval and 
incorporation by reference above, the EPA reviews and approves state 
and local clean air agency submissions to ensure they provide adequate 
enforcement authority and other general authority to implement and 
enforce the SIP. However, regulations describing such agency 
enforcement and other general authority are generally not incorporated 
by reference so as to avoid potential conflict with the EPA's 
independent authorities. On August 31, 2004, the EPA reviewed and 
approved Regulation I, sections 3.01, 3.05, 3.09, 3.13, 3.15, 3.17, 
3.19, and 3.21 as providing PSCAA adequate enforcement and other 
general authority for purposes of implementing and enforcing its SIP 
but did not incorporate these provisions by reference (69 FR 53007). 
While these provisions remain unchanged since our last review and 
approval, we are proposing to include these sections in 40 CFR 
52.2470(e), EPA Approved Nonregulatory Provisions and Quasi-Regulatory 
Measures, as approved but not incorporated by reference regulatory 
provisions. We also note that effective May 1, 2006, PSCAA made a minor 
update to section 3.07 since our last approval. A redline/strikeout of 
the changes is detailed in WSR 06-08-031 included in the docket for 
this action. Lastly, PSCAA updates Regulation 1, section 3.11 annually 
to adjust civil penalties for inflation. We are proposing to approve, 
but not incorporate by reference, the updated version of section 3.11, 
effective November 1, 2019.

C. Regulations To Remove From the SIP

    PSCAA and Ecology's December 20, 2019 submittal included a request 
to remove several obsolete provisions from the SIP and to remove other 
provisions that are not required SIP elements under CAA section 110. As 
previously discussed in section II, PSCAA

[[Page 4927]]

eliminated Regulation I, sections 6.06 ``Public Notice,'' 6.07 ``Order 
of Approval--Order to Prevent Construction,'' and 6.08 ``Emission 
Reduction Credit Banking'' in order to rely on the statewide Chapter 
173-400 WAC provisions. PSCAA also requested that the EPA remove from 
the SIP section 5.02 ``Applicability and Purpose of the Registration 
Program,'' which was repealed in 2004 because revised versions of 
sections 5.03 and 5.05 subsumed the substantive provisions formerly in 
section 5.02. The revised versions of 5.03 and 5.05 are proposed for 
approval into the SIP. We are removing the former provisions of section 
6.03(b)(17) [subsequently renumbered to (b)(10)] because this broad, 
discretionary provision is not appropriate for approval into the SIP, 
as described above.
    Under section 110(a)(2)(L) of the CAA, the State, or local agencies 
acting in lieu of the State, must demonstrate the ability to collect 
adequate fees for permitting major sources. PSCAA is therefore 
submitting section 6.04 ``Notice of Construction Fees'' to demonstrate 
adequate fee authority to implement the major source nonattainment NSR 
program under WAC 173-400-800 through 173-400-860, as incorporated by 
reference. While the EPA reviews these submissions to confirm adequate 
authority, the EPA generally does not include local or state agency 
fees as part of the Washington SIP incorporated by reference in 40 CFR 
52.2470(c). We are therefore proposing to correct an error from our 
previous approval on April 21, 1998, when the fee provisions of section 
6.04 were inadvertently incorporated by reference (63 FR 19658).
    Lastly, as described above regarding the applicability of WAC 173-
400-020, we are removing outdated WAC provisions from our previous June 
2, 1995 approval and replacing them with the updated versions of the 
WAC shown in Table 3 or the appropriate PSCAA corollaries as shown in 
Table 1.

D. Scope of Proposed Action

    This proposed revision to the SIP applies specifically to the PSCAA 
jurisdiction incorporated into the SIP at 40 CFR 52.2470(c)--Table 7. 
As discussed in our October 3, 2014 action, local air agency 
jurisdiction in Washington is generally defined on a geographic basis; 
however, there are exceptions (79 FR 59653, at page 59654). By statute, 
PSCAA does not have authority for sources under the jurisdiction of the 
Energy Facility Site Evaluation Council (EFSEC). See Revised Code of 
Washington Chapter 80.50. Under the applicability provisions of WAC 
173-405-012, 173-410-012, and 173-415-012, PSCAA also does not have 
jurisdiction for kraft pulp mills, sulfite pulping mills, and primary 
aluminum plants. For these sources, Ecology retains statewide, direct 
jurisdiction. Ecology and EFSEC also retain statewide, direct 
jurisdiction for issuing PSD permits. Therefore, the EPA is not 
approving into 40 CFR 52.2470(c)--Table 7 those provisions of Chapter 
173-400 WAC related to the PSD program. Specifically, these provisions 
are WAC 173-400-116 and WAC 173-400-700 through 173-400-750, which the 
EPA has already approved as applying state-wide under 40 CFR 
52.2470(c)--Tables 2 and 3.
    As described in our April 29, 2015 action, jurisdiction to 
implement the visibility permitting program contained in WAC 173-400-
117 varies depending on the situation. Ecology retains authority to 
implement WAC 173-400-117 as it relates to PSD permits. See 80 FR 
23721. However, for facilities subject to major nonattainment NSR under 
the applicability provisions of WAC 173-400-800, incorporated by 
reference in Regulation I, we are proposing that PSCAA would be 
responsible for implementing those parts of WAC 173-400-117 as they 
relate to major nonattainment NSR permits. See 80 FR 23726. If 
finalized, the EPA is also proposing to modify the visibility 
protection Federal Implementation Plan contained in 40 CFR 52.2498 to 
reflect the approval of WAC 173-400-117 as it applies to implementation 
of the major nonattainment NSR program in PSCAA's jurisdiction.
    Lastly, this SIP revision 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 and 
will not impose substantial direct costs on tribal governments or 
preempt tribal law as specified by Executive Order 13175 (65 FR 67249, 
November 9, 2000). 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.

V. Incorporation by Reference

    In this document, the EPA is proposing to include in a final EPA 
rule regulatory text that includes incorporation by reference. In 
accordance with requirements of 1 CFR 51.5, the EPA is proposing to 
incorporate by reference the regulations shown in the tables in section 
IV.A. Regulations to Approve and Incorporate by Reference into the SIP 
and the rules proposed for removal from the SIP in section IV.C. 
Regulations to Remove from the SIP. The EPA has made, and will continue 
to make, these materials generally available through 
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).

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, the EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely proposes to approve state law as meeting federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866;
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or

[[Page 4928]]

safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 
1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because this action does not involve technical standards; and
     Does not provide the EPA with the discretionary authority 
to address, as appropriate, disproportionate human health or 
environmental effects, using practicable and legally permissible 
methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
    As discussed above, the SIP is not approved to apply on any Indian 
reservation land in Washington, or any other area where the EPA or an 
Indian tribe has demonstrated that a tribe has jurisdiction (excluding 
non-trust land within the exterior boundaries of the Puyallup Indian 
Reservation), as described in Section IV.D above. In those areas of 
Indian country, the rule does not have tribal implications and will not 
impose substantial direct costs on tribal governments or preempt tribal 
law as specified by Executive Order 13175 (65 FR 67249, November 9, 
2000). Consistent with EPA policy, the EPA provided a consultation 
opportunity to the Puyallup Tribe in a letter dated October 18, 2019.

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: January 13, 2020.
Chris Hladick,
Regional Administrator, Region 10.
[FR Doc. 2020-01465 Filed 1-27-20; 8:45 am]
BILLING CODE 6560-50-P


