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

ENVIRONMENTAL PROTECTION AGENCY <CFR>40 CFR Part 52</CFR> <DEPDOC>[EPA-R10-OAR-2024-0372; FRL-12293-01-R10]</DEPDOC> <SUBJECT>Air Plan Approval; WA; Excess Emissions, Startup, Shutdown, and Malfunction Revisions, Energy Facility Site Evaluation Council</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Environmental Protection Agency (EPA). <HD SOURCE="HED">ACTION:</HD> Proposed rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The Environmental Protection Agency (EPA) is proposing to approve Washington State Implementation Plan (SIP) revisions to the Energy Facility Site Evaluation Council (EFSEC) air quality regulations submitted by the State of Washington, through the Department of Ecology (Ecology) on June 15, 2023. The revisions were submitted in response to EPA's June 12, 2015 “SIP call” in which the EPA found a substantially inadequate Washington SIP provision providing affirmative defenses that operate to limit the jurisdiction of the Federal court in an enforcement action related to excess emissions during startup, shutdown, and malfunction (SSM) events. The EPA is proposing approval of the SIP revisions and proposing to determine that removal of the substantially inadequate provision corrects the EFSEC deficiency identified in the 2015 SSM SIP call and the EPA's January 2022 finding of failure to submit. Washington withdrew some portions of the revisions submitted that were not identified in the 2015 SSM SIP call and therefore the EPA is not proposing action on those withdrawn portions. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Comments must be received on or before November 21, 2024. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> Submit your comments, identified by Docket ID No. EPA-R10-OAR-2024-0372, at <E T="03">https://www.regulations.gov.</E> Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from <E T="03">Regulations.gov</E> . 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 ( <E T="03">i.e.,</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 <E T="03">https://www.epa.gov/dockets/commenting-epa-dockets.</E> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Randall Ruddick, EPA Region 10 1200 Sixth Avenue (Suite 155), Seattle, WA 98101, (206) 553-1999; or email <E T="03">ruddick.randall@epa.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> Throughout this document whenever “we,” or “our,” is used, it refers to EPA. <HD SOURCE="HD1">Table of Contents </HD> <EXTRACT> <FP SOURCE="FP-2">I. Background</FP> <FP SOURCE="FP-2">II. Analysis of SIP Submission</FP> <FP SOURCE="FP1-2">A. The Provision Subject to the 2015 SSM SIP Call</FP> <FP SOURCE="FP1-2">B. Additional SIP Revisions Submitted But Not Specified in the 2015 SSM SIP Call</FP> <FP SOURCE="FP-2">III. Proposed Action</FP> <FP SOURCE="FP-2">IV. Incorporation by Reference</FP> <FP SOURCE="FP-2">V. Statutory and Executive Orders Review</FP> </EXTRACT> <HD SOURCE="HD1">I. Background</HD> On June 12, 2015, pursuant to CAA section 110(k)(5), the EPA finalized “State Implementation Plans: Response to Petition for Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown and Malfunction,” (80 FR 33840, June 12, 2015), hereinafter referred to as the “2015 SSM SIP Action.” The 2015 SSM SIP Action clarified, restated, and updated EPA's interpretation that SSM exemption and affirmative defense SIP provisions are inconsistent with CAA requirements. The 2015 SSM SIP Action found that certain SIP provisions in 36 states (including Washington State) were substantially inadequate to meet CAA requirements and issued a SIP call to those states to submit SIP revisions to address the inadequacies. EPA established an 18-month deadline by which the affected states had to submit such SIP revisions. States were required to submit corrective revisions to their SIPs in response to the SIP calls by November 22, 2016. With regard to the Washington SIP, EPA determined that, to the extent that Wash. Admin. Code (WAC) 173-400-107 was intended to be an affirmative defense, it was not consistent with the requirements of the CAA. Therefore, EPA issued a SIP call with respect to this provision. The detailed rationale for issuing the SIP call to Washington can be found in the 2015 SSM SIP Action and preceding proposed actions. <E T="51">1 2</E> <FTREF/> <FTNT> <SU>1</SU>   <E T="03">See</E> State Implementation Plans: Response to Petition for Rulemaking; Findings of Substantial Inadequacy; and SIP Calls To Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown, and Malfunction, 78 FR 12460 (February 22, 2013). <SU>2</SU>   <E T="03">See</E> SNPR (“State Implementation Plans: Response to Petition for Rulemaking; Findings of Substantial Inadequacy; and SIP Calls To Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown and Malfunction; Supplemental Proposal To Address Affirmative Defense Provisions in States Included in the Petition for Rulemaking and in Additional States; Supplemental notice of proposed rulemaking,” 79 FR 55919, September 17, 2014). </FTNT> On January 12, 2022, the EPA issued Findings of Failure to Submit (FFS) to 12 air agencies, including EFSEC, that had not submitted SIPs responding to the 2015 SSM SIP call by the November 22, 2016, deadline per the requirements of section 110(k)(5) of the Act. <SU>3</SU> <FTREF/> <FTNT> <SU>3</SU>  Findings of Failure To Submit State Implementation Plan Revisions in Response to the 2015 Findings of Substantial Inadequacy and SIP Calls To Amend Provisions Applying To Excess Emissions During Periods of Startup, Shutdown, and Malfunction, 87 FR 1680 (January 12, 2022), available at <E T="03">Regulations.gov,</E> Docket ID No. EPA-HQ-OAR-2021-0863. </FTNT> On March 1, 2024, the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) issued a decision in <E T="03">Environ. Comm. Fl. Elec. Power</E> v. <E T="03">EPA,</E> No. 15-1239 (“D.C. Circuit decision”). <SU>4</SU> <FTREF/> The case was a consolidated set of petitions for review of the 2015 SSM SIP Action. The Court granted the petitions in part, vacating the SIP call with respect to SIP provisions that EPA identified as automatic exemptions, director's discretion provisions, and affirmative defenses that are functionally exemptions; and denied the petitions as to other provisions that EPA identified as overbroad enforcement discretion provisions, or affirmative defense provisions that would preclude or limit a court from imposing relief in the case of violations, which the Court also refers to as “specific relief.” <FTNT> <SU>4</SU>  See <E T="03">Environ. Comm. Fl. Elec. Power</E> v. <E T="03">EPA,</E> 94 F.4th 77, 115 (D.C. Cir. 2024). </FTNT> With respect to affirmative defense provisions against specific relief, the Court reaffirmed that states cannot limit courts' discretion to determine and apply appropriate civil penalties for violations of SIPs and denied the petitions for review as to affirmative defenses against monetary damages. <SU>5</SU> <FTREF/> This is in keeping with the EPA's interpretation of the CAA in our 2015 SSM SIP Action that states do not have authority to create, and thus the EPA does not have authority to approve, SIP provisions that include an affirmative defense that would operate to alter the jurisdiction of Federal courts to assess penalties or other forms of relief authorized in sections 113 and 304. <SU>6</SU> <FTREF/> As explained in the 2015 SSM SIP Action, WAC 173-400-107 provides affirmative defenses that operate to limit the jurisdiction of the Federal court in an enforcement action to assess monetary penalties or impose injunctive relief under certain circumstances as contemplated in CAA sections 113 and 304. <SU>7</SU> <FTREF/> <FTNT> <SU>5</SU>   <E T="03">Id.</E> at 114-15. </FTNT> <FTNT> <SU>6</SU>  As stated in our supplemental notice of proposed rulemaking 79 FR 55920 at 55929. <E T="03">See also</E> 80 FR 33840 at 33853, 33870. </FTNT> <FTNT> <SU>7</SU>   <E T="03">See</E> 79 FR 55920 at 55952. <E T="03">See also</E> 80 FR 33974. </FTNT> By statute, EFSEC has jurisdiction for managing the air program with respect to major energy facilities in the State of Washington. See Chapter 80.50 of the Revised Code of Washington (RCW). EFSEC air quality regulations primarily adopt by reference Ecology's general air quality regulations, including WAC 173-400-107. Thus, in our 2015 SSM SIP Action, the EPA also issued a SIP call with respect to EFSEC's adoption by reference of WAC 173-400-107 in WAC 463-39-005. <SU>8</SU> <FTREF/> <FTNT> <SU>8</SU>   <E T="03">See</E> 80 FR 33840, June 12, 2015. </FTNT> In response to the EPA's 2015 SSM SIP call, Ecology removed WAC 173-400-107 from the SIP. The EPA approved this SIP revision, along with others, on December 28, 2023 (88 FR 89582). In its June 15, 2023 SIP submittal, Washington is, among other revis ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 35k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━