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

<RULE> ENVIRONMENTAL PROTECTION AGENCY <CFR>40 CFR Part 52</CFR> <DEPDOC>[EPA-R10-OAR-2024-0372; FRL-12293-02-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> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The Environmental Protection Agency (EPA) is approving 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 the EPA's June 12, 2015 “SIP call” in which the EPA found substantially inadequate a 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's approval of the SIP revisions includes removal of the substantially inadequate provision which 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the revisions submitted that were not identified in the 2015 SSM SIP call and therefore the EPA is not approving those withdrawn portions. </SUM> <DATES> <HD SOURCE="HED">DATES:</HD> This final rule is effective January 27, 2025. </DATES> <HD SOURCE="HED">ADDRESSES:</HD> The EPA has established a docket for this action under Docket ID No. EPA-R10-OAR-2024-0372. All documents in the docket are listed on the <E T="03">https://www.regulations.gov</E> website. Although listed in the index, some information is not publicly available, <E T="03">e.g.,</E> Confidential Business Information or other information the disclosure of which is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available at <E T="03">https://www.regulations.gov,</E> or please contact the person listed in the <E T="02">FOR FURTHER INFORMATION CONTACT</E> section for additional availability information. <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 the EPA. <HD SOURCE="HD1">Table of Contents </HD> <EXTRACT> <FP SOURCE="FP-2">I. Background</FP> <FP SOURCE="FP-2">II. Public Comment and the EPA's Response</FP> <FP SOURCE="FP-2">III. Final Action</FP> <FP SOURCE="FP-2">IV. Incorporation by Reference</FP> <FP SOURCE="FP-2">V. Statutory and Executive Order Reviews</FP> </EXTRACT> <HD SOURCE="HD1">I. Background</HD> On October 22, 2024 (89 FR 84322), the EPA proposed to approve 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. In that proposal, we also proposed to determine that one of the SIP revisions, the removal of EFSEC's adoption by reference of WAC 173-400-107, corrects the deficiency with respect to EFSEC that we identified in our June 12, 2015 action entitled “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”  <SU>1</SU> <FTREF/> (“2015 SSM SIP call”) and our January 12, 2022, Findings of Failure to Submit  <SU>2</SU> <FTREF/> (FFS). The remaining SIP revisions submitted with the removal of EFSEC's adoption by reference of WAC 173-400-107 on June 15, 2023, were not specified in the 2015 SSM SIP call. The reasons for our proposed approval and determination can be found in the proposed action and will not be fully restated here. The public comment period closed on November 21, 2024. We received one comment outside the scope of our proposed action; therefore, we are finalizing our action as proposed. <FTNT> <SU>1</SU>  80 FR 33839, June 12, 2015. </FTNT> <FTNT> <SU>2</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">https://www.regulations.gov,</E> Docket ID No. EPA-HQ-OAR-2021-0863. </FTNT> <HD SOURCE="HD1">II. Public Comment and the EPA's Response</HD> <E T="03">Comment:</E> The commenter appears to support the EPA finalizing approval of revisions to EFSEC's regulations but voiced concern about the amount of time it took to get to this approval from issuance of the 2015 SSM SIP call. The commenter also raised concerns about implementation “of the statute” and the allowance of “significant pollutant emissions despite the good-faith intentions of both Federal and state agencies.” The commenter went on to suggest “New rules surrounding revision timelines could help effectively allocate agency efforts in the exercise of its authority while retaining the necessary period for due process and public participation. <E T="03">Response:</E> The EPA acknowledges the commenter's concerns. However, the concerns raised by the commenter are outside the scope of this action. Moreover, the commenter does not indicate that the EPA's proposed approval action of the SIP submission should be changed or should not be finalized as proposed. Rather, the comment appears to support finalizing the proposed approval. Therefore, we are finalizing our action as proposed. <HD SOURCE="HD1">III. Final Action</HD> The EPA is approving and incorporating by reference in the Washington SIP the revisions Washington submitted on June 15, 2023, except for those withdrawn by Washington. <SU>3</SU> <FTREF/> This action includes removal of the adoption by reference of WAC 173-400-107—the provision identified as inconsistent with Clean Air Act (CAA) requirements in our 2015 SSM SIP call—from the EFSEC air quality regulations contained in Chapter 463-78 Washington Administrative Code (WAC) <E T="03">General and Operating Permit Regulations for Air Pollution Sources.</E> <FTNT> <SU>3</SU>  See <E T="03">201_state submittal supplement_EFSEC Partial Withdrawal Request Letter—Ecology.pdf</E> and <E T="03">202_state submittal supplement_EFSEC Partial Withdrawal Request Letter—EFSEC.pdf</E> included in the docket for this action. </FTNT> Once this action becomes effective, the Washington SIP will no longer include the following regulations for EFSEC's jurisdiction: • WAC 173-400-070, Emission Standards for Certain Source Categories—sets forth maximum allowable standards for emissions units within the categories listed; • WAC 173-400-107, Excess Emissions—established a pathway to determine excess emissions unavoidable, excuse them from penalty, and in certain instances precluded them from being considered violations. This action also approves and incorporates by reference at 40 CFR 52.2470(c)— <E T="03">Table 3—Additional Regulations Approved for the Energy Facilities Site Evaluation Council (EFSEC) Jurisdiction,</E> the following revised regulations: • WAC 463-78-005(2), Adoption by Reference (State effective August 28, 2020)—which adopts certain regulations in Chapter 173-400 WAC by reference. The revised Chapter 173-400 WAC provisions approved for EFSEC's jurisdiction are: • WAC 173-400-030, Definitions (State effective September 16, 2018)—which establishes definitions used throughout Chapter 173-400 WAC; • WAC 173-400-081, Emission Limits during Startup and Shutdown (State effective September 16, 2018)—which establishes pathway for developing emissions limits that apply during startup and shutdown; • WAC 173-400-082, Alternative Emission Limit That Exceeds an Emission Standard in the SIP (State effective September 16, 2018)—which establishes pathway for an owner or operator to request an alternative emissions limit; • WAC 173-400-136 Use of Emission Reduction Credits (ERC) (State effective December 29, 2012)—which identifies permissible use and sets certain conditions of use of ERCs; • WAC 173-400-171 Public Involvement (State effective September 16, 2018)—which sets forth certain requirements for public involvement. These SIP revisions apply specifically to the jurisdiction of the Washington State Energy Facility Site Evaluation Council. <HD SOURCE="HD1">IV. Incorporation by Reference</HD> In this document, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference as described in section III of this preamble. The EPA has made, and will continue to make, these materials generally available through <E T="03">https://www.regulations.gov</E> and at the EPA Region 10 Office (please contact the person identified in the <E T="02">FOR FURTHER INFORMATION CONTACT</E> section of this preamble for more information). Therefore, these materials have been approved by the EPA for inclusion in the SIP, have been incorporated by reference by the EPA into that plan, are fully federally enforceable under sections 110 and 113 of the Clean Air Act as of the effective date of the final rule of the EPA's approval, and w ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 19k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━