SUPPLEMENTARY INFORMATION:

Throughout this document, wherever “we” or “our” is used, it means “the EPA.” We use multiple abbreviations and terms in this proposed rule. While this list may not be exhaustive, for ease of reading and for reference purposes, the EPA defines the following terms and acronyms here:

CAA—Clean Air Act

CBI—Confidential Business Information

CFR—Code of Federal Regulations

EPA—Environmental Protection Agency

FR—Federal Register

NESHAP—National Emission Standards for Hazardous Air Pollutants

NWCAA—Northwest Clean Air Agency ( printed page 66059)

NSPS—New Source Performance Standards

NSR—New Source Review

RCW—Revised Code of Washington

SIP—State Implementation Plan

WAC—Washington Administrative Code

WCAA—Washington Clean Air Act

Table of Contents

I. Background

II. What does this action do?

III. What is the authority for delegation?

IV. What criteria must NWCAA's programs meet to be approved?

V. How did NWCAA meet the NSPS and NESHAP program approval criteria?

VI. What is being delegated?

VII. What is not being delegated?

VIII. What authority does the EPA have?

IX. What information must NWCAA provide to the EPA?

X. What is the EPA's oversight role?

XI. Should sources submit notices to the EPA or NWCAA?

XII. Where can I find information on which NSPS and NESHAP standards have been delegated in Region 10?

XIII. Proposed Action

XIV. Statutory and Executive Order Reviews

I. Background

NWCAA is a local clean air agency authorized under the State of Washington's Clean Air Act (WCAA) to implement and enforce the new source review and operating permit programs for applicable sources within its jurisdiction of Island, Skagit and Whatcom counties.^[1] Specifically, the WCAA states, “The Department of Ecology may accept delegation of programs as provided for in the Federal Clean Air Act. Subject to Federal approval, the department may, in turn, delegate such programs to the local authority with jurisdiction in a given area.” ^[2] On December 1, 1998, the EPA approved the Washington Department of Ecology's request for program approval and delegation of authority for three local agencies in Washington, including NWCAA, to implement and enforce locally-adopted hazardous air pollutant regulations which adopt by reference the Federal NESHAP contained within 40 CFR parts 61 and 63, as these regulations apply to all sources ( i.e., both 40 CFR part 70 and non-part 70 sources).^[3]

Pursuant to the authority of section 112(1) of the CAA, at the time of delegation, the EPA also approved streamlined procedures for requesting and approving the delegation of new or updated NESHAP.^[4] Specifically, the streamlined approval process for updating a delegation is as follows: (1) the requesting agency sends a letter to the EPA asking for delegation of new and/or revised NESHAP that have been adopted unchanged into their regulations; (2) the EPA sends a letter of response granting this delegation request (or explaining why it cannot be granted); (3) the agency does not need to send a response back to the EPA; (4) if the EPA does not receive a negative response from the requesting agency within 10 days of the signature date of the EPA's letter, then the updated delegation becomes final 10 days after the date of EPA's letter.^[5] The streamlined approval process also requires that the EPA publish a notice of the delegation in the Federal Register on a periodic basis to inform the public that the delegation has taken place and to indicate where source notifications and reports should be sent.

II. What does this action do?

NSPS are pollution control standards issued by the EPA that set uniform national emission limits for new, modified, and reconstructed industrial facilities. Similarly, NESHAP are emission standards for toxic air pollutants from stationary sources. The EPA is updating the delegation of implementation and enforcement of certain NSPS to NWCAA. The EPA is also proposing to approve the delegation of implementation and enforcement of certain NESHAP to NWCAA. If finalized, the delegation will provide NWCAA with the primary responsibility to implement and enforce the delegated standards.

III. What is the authority for delegation?

Section 111(c)(1) of the Clean Air Act (CAA) authorizes the EPA to delegate authority to any State which submits adequate regulatory procedures for implementation and enforcement of the NSPS program. Under the EPA-approved Washington SIP, new source review (NSR) permitting is further delegated to local clean air agencies, including NWCAA, for sources under local agency jurisdiction.^[6] The NSPS standards are codified at 40 CFR part 60.

Section 112(l) of the CAA, and 40 CFR part 63, subpart E, authorize the EPA to delegate authority to any State which submits adequate regulatory procedures for implementation and enforcement of emission standards for hazardous air pollutants. The EPA's final approval of Washington's Title V operating permits program included delegating the authority to implement certain NESHAP standards to local clean air agencies for sources under local clean air agency jurisdiction.^[7] The hazardous air pollutant standards are codified at 40 CFR parts 61 and 63.

IV. What criteria must NWCAA's programs meet to be approved?

In order to receive delegation of an NSPS, a State or local agency must develop and submit to the EPA regulations for implementing and enforcing the NSPS, and the agency's resources must be adequate for the implementation and enforcement of the NSPS. The EPA most recently approved NWCAA's program for the delegation of NSPS in a letter dated January 7, 2025.^[8] The EPA reviewed the rules and regulations of NWCAA and determined NWCAA's procedures, regulations and resources are adequate for the implementation and enforcement of the NSPS program. This action notifies the public that EPA is updating NWCAA's delegation to implement and enforce certain additional NSPS.

As to the NESHAP standards in 40 CFR parts 61 and 63, section 112(l)(5) of the CAA requires the EPA to disapprove any program submitted by a State ^[9] for the delegation of NESHAP standards if the EPA determines that:

(A) the authorities contained in the program are not adequate to assure compliance by the sources within the agency's jurisdiction with respect to each applicable standard, regulation, or requirement established under section 112; ( printed page 66060)

(B) adequate authority does not exist, or adequate resources are not available, to implement the program;

(C) the schedule for implementing the program and assuring compliance by affected sources is not sufficiently expeditious; or

(D) the program is otherwise not in compliance with the guidance issued by the EPA under section 112(l)(2) or is not likely to satisfy, in whole or in part, the objectives of the CAA.

In carrying out its responsibilities under section 112(l), the EPA promulgated regulations at 40 CFR part 63, subpart E, setting forth criteria for the approval of submitted programs. For example, in order to obtain approval of a program to implement and enforce Federal section 112 of the CAA rules as promulgated without changes (straight delegation) for part 70 sources, a State or local agency must demonstrate that it meets the criteria of 40 CFR 63.91(d). The 40 CFR 63.91(d)(3) provides that interim or final Title V program approval will satisfy the criteria of 40 CFR 63.91(d).^[10] The NESHAP delegation for NWCAA, as it applies to both 40 CFR part 70 and non-part 70 sources, was most recently approved in a letter dated January 7, 2025.^[11]

V. How did NWCAA meet the NSPS and NESHAP program approval criteria?

As to the NSPS standards in 40 CFR part 60, NWCAA adopted the Federal standards via incorporation by reference. The NWCAA regulations are, therefore, at least as stringent as the EPA's rules.^[12] As part of our most recent January 7, 2025, letter approving NWCAA's delegation of authority, we determined that NWCAA's resources and procedures for implementing and enforcing the NSPS continue to remain adequate since the EPA's prior delegation of authority on May 10, 2023.^[13]

As to the NESHAP standards in 40 CFR parts 61 and 63, NWCAA uses incorporation by reference to adopt unchanged Federal section 112 of the CAA standards into its regulations in NWCAA 104.2. The EPA's final interim approval of Washington's title V operating permits program, including NWCAA as a local clean air agency, delegated the authority to implement certain NESHAPS.^[14] The EPA promulgated final full approval of the State's operating permits program, including local clean air agencies, on August 13, 2001. See66 FR 42439. These interim and final title V program approvals satisfy the up-front approval criteria of 40 CFR 63.91(d).

Under 40 CFR 63.91(d)(2), once a State, including local clean air agencies, has satisfied up-front approval criteria, it needs only to reference the previous demonstration and reaffirm that it still meets the criteria for any subsequent submittals for delegation of the CAA section 112 standards. NWCAA has affirmed that it still meets the up-front approval criteria. With respect to non-part 70 sources, the EPA approved delegation of NESHAP authorities to NWCAA in a letter dated January 7, 2025, after finding adequate authorities to implement and enforce the NESHAP for such sources.^[15]

VI. What is being delegated?

By letters dated January 16, 2024, the EPA received requests from NWCAA to update its existing NSPS and NESHAP delegations. With certain exceptions noted in section VI of this document, NWCAA's request included NSPS in 40 CFR part 60, and NESHAP in 40 CFR parts 61 and 63. NWCAA's request included newly incorporated NSPS and NESHAP standards promulgated by the EPA and amendments to existing standards currently delegated, in effect as of October 18, 2023, as adopted by NWCAA.

VII. What is not being delegated?

With respect to NSPS delegation, Attachment B, Standards of Performance for New Stationary Sources Subparts Requested to be Delegated to the Northwest Clean Air Agency, lists the 40 CFR part 60 subparts requested by NWCAA for delegation.^[16] Attachment B delineates those provision shaded in grey that are not delegable by the EPA and also delineates those provisions shaded in yellow where the State of Washington retains delegation of these subparts. All inquiries and requests concerning implementation and enforcement of the excluded standards shaded in grey should be directed to the EPA Region 10 Office. Other exemptions and requirements are listed in our January 7, 2025, letter approving NWCAA's NSPS delegation request.^[17]

With respect to NESHAP delegation, Attachment B, National Emission Standards for Hazardous Air Pollutants Subparts Requested to be Delegated to the Northwest Clean Air Agency—40 CFR part 61 Subparts and Attachment C, National Emission Standards for Hazardous Air Pollutants Subparts Requested to be Delegated to the Northwest Clean Air Agency—40 CFR part 63 Subparts, list the subparts requested by NWCAA for delegation.^[18] Subparts shaded in grey are not delegable by the EPA. NWCAA also did not request subparts shaded in yellow, for which the Washington State Department of Ecology retains delegated authority. Subparts shaded in orange are vacated provisions that are not delegable.

In addition, the EPA regulations provide that we cannot delegate to a State or local agency any of the Category II Subpart A authorities set forth in 40 CFR 63.91(g)(2). These include the following provisions: 40 CFR 63.6(g), Approval of Alternative Non-Opacity Standards; 63.6(h)(9), Approval of Alternative Opacity Standards; 63.7(e)(2)(ii) and (f), Approval of Major Alternatives to Test Methods; 63.8(f), Approval of Major Alternatives to Monitoring; and 63.10(f), Approval of Major Alternatives to Recordkeeping and Reporting. Also, some 40 CFR parts 61 and 63 standards have certain provisions that cannot be delegated to the States or local agencies. Furthermore, no authorities are delegated that require rulemaking in the Federal Register to implement, or where Federal overview is the only way to ensure national consistency in the application of the standards or requirements of CAA section 112. Finally, this action does not propose delegation of any authority under CAA section 112(r), the accidental release program.

If this proposed rule is finalized as proposed, all questions concerning implementation and enforcement of the excluded standards shaded in grey should be directed to the EPA Region 10 Office. NWCAA did not request ( printed page 66061) delegation authority for subparts shaded in yellow, specifically subparts S, LL, MM, RRR, related to aluminum production facilities and pulp and paper facilities. Therefore, all questions concerning implementation and enforcement of these subparts should be directed to the Washington Department of Ecology where it is the regulatory authority under State law and to the EPA, Region 10 in other cases.

The EPA is proposing a determination that the NESHAP program submitted by NWCAA meets the applicable requirements of CAA section 112(l)(5) and 40 CFR part 63, subpart E.

In addition, this delegation to NWCAA to implement and enforce certain NSPS and NESHAP does not extend to sources or activities located in Indian country, as defined in 18 U.S.C. 1151. Under this definition, the EPA treats as reservations, trust lands validly set aside for the use of a Tribe even if the trust lands have not been formally designated as a reservation. Consistent with previous Federal program approvals or delegations, the EPA will continue to implement the NSPS and NESHAP in Indian country because NWCAA has not submitted information to demonstrate authority over sources and activities located within the exterior boundaries of Indian reservations and other areas in Indian country.

VIII. What authority does the EPA have?

We retain the right, as provided by CAA section 111(c)(2), to enforce any applicable emission standard or requirement under CAA section 111.

We retain the right, as provided by CAA section 112(l)(7) and 40 CFR 63.90(d)(2), to enforce any applicable emission standard or requirement under CAA section 112. In addition, the EPA may enforce any federally approved State or local agency rule, requirement, or program under 40 CFR 63.90(e) and 63.91(c)(1)(i). The EPA also has the authority to make certain decisions under the General Provisions (subpart A) of 40 CFR parts 61 and 63. We are proposing to delegate to NWCAA some of these authorities, and retain others, as explained in sections V and VI of this document. In addition, the EPA may review and disapprove State or local agency determinations and subsequently require corrections. See40 CFR 63.91(g)(1)(ii). The EPA also has the authority to review NWCAA's implementation and enforcement of approved rules or programs and to withdraw approval if we find inadequate implementation or enforcement. See40 CFR 63.96.

Furthermore, we retain the authority in an individual emission standard that may not be delegated according to provisions of the standard. Finally, we retain the authorities stated in the original delegation agreement. See63 FR 66054 (December 1, 1998). Tables of how the updated NSPS and NESHAP delegations would look if this proposal is finalized may be found in the docket for this proposed rulemaking.^[19] The tables also show the authorities that cannot be delegated to any State or local agency.

IX. What information must NWCAA provide to the EPA?

NWCAA must provide any additional compliance related information to the EPA, Region 10, Office of Enforcement and Compliance Assurance, within 45 days of a request under 40 CFR 63.96(a). Under 40 CFR. 63.91(g)(1), NWCAA may request delegation any of the authorities listed as Category I, and the EPA will delegate any such authorities at its discretion. NWCAA must maintain a record of all approved alternatives to all monitoring, testing, recordkeeping, and reporting requirements and provide this list of alternatives to its EPA Regional Office at least semi-annually, or on a more frequent basis if requested by the Regional Office.^[20]

X. What is the EPA's oversight role?

The EPA must oversee NWCAA's decisions to ensure the delegated authorities are being adequately implemented and enforced. We will integrate oversight of the delegated authorities into the existing mechanisms and resources for oversight currently in place. If, during oversight, we determine that NWCAA has made decisions that decrease the stringency of the delegated standards, then NWCAA shall be required to take corrective actions and the source(s) affected by the decisions will be notified, as required by and under the procedures set forth at 40 CFR 63.96(b). We will initiate withdrawal proceedings of the program or rule under 40 CFR 63.96(b) if the corrective actions taken are insufficient.

XI. Should sources submit notices to the EPA or NWCAA?

NWCAA is the primary point of contact with respect to delegated NSPS and NESHAP. For the delegated NSPS and NESHAP standards and authorities covered by this proposed rulemaking, if finalized, sources would submit all of the information required pursuant to the general provisions and the relevant subpart(s) of the delegated NSPS and NESHAP (40 CFR parts 60, 61 and 63) to NWCAA in a manner specified by the agency. The EPA's Region 10 proposes to waive the requirement that courtesy notifications and reports for delegated standards be submitted to the EPA in addition to NWCAA in accordance with 40 CFR 63.9(a)(4)(ii) and 63.10(a)(4)(ii).^[21] For those standards and authorities not delegated as discussed above, sources must continue to submit all appropriate information to the EPA by electronic database portals, except subpart LL, related to aluminum production facilities and those provisions of subparts S and MM that apply to chemical pulp and paper facilities, for which the Washington State Department of Ecology retains delegated authority.

XII. Where can I find information on which NSPS and NESHAP standards have been delegated in Region 10?

Tables of the currently delegated NSPS and NESHAP standards are available on the EPA Region 10 website at www.epa.gov/​caa-permitting/​delegations-new-source-performance-standards-nsps-and-national-emission-standards-0. If this delegation is finalized, the EPA is proposing to remove the outdated delegation information in 40 CFR 60.4(b)(49), 61.04(c)(10), and 63.99(a)(48), and amend these sections with a citation to the Region 10 website with the most current status for NSPS and NESHAP delegations.

XIII. Proposed Action

In this proposed rule, the EPA is proposing to update the delegation of certain NSPS to NWCAA, and to approve an update to the NWCAA NESHAP delegation that would provide the NWCAA with the authority to implement and enforce certain newly incorporated NESHAP promulgated by the EPA and amendments to existing standards currently delegated, as they existed through October 18, 2023.

XIV. Statutory and Executive Order Reviews

Under the CAA, the Administrator has the authority to approve section 112(l) submissions that comply with the provisions of the Act and applicable ( printed page 66062) Federal regulations. In reviewing CAA section 112(l) submissions, the EPA's role is to approve State or local agency choices, provided that they meet the criteria and objectives of the CAA and of the EPA's implementing regulations. Accordingly, this proposed action would merely approve NWCAA's request as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this proposed action:

A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

This proposed action is not a significant regulatory action as defined in Executive Order 12866 (58 FR 51735, October 4, 1993) and was therefore not submitted to the Office of Management and Budget (OMB) for review.

B. Executive Order 14192: Unleashing Prosperity Through Deregulation

This proposed action is not an Executive Order 14192 regulatory action because this action is not significant under Executive Order 12866.

C. Paperwork Reduction Act (PRA)

This proposed action does not impose an information collection burden under the PRA (44 U.S.C. 3501 et seq.) because it does not impose an information collection burden.

D. Regulatory Flexibility Act (RFA)

This proposed action is certified to not have a significant economic impact on a substantial number of small entities under the RFA (5 U.S.C. 601 et seq.). This proposed action proposes to approve the delegation of Federal rules as requested by the local agency and will therefore have no net regulatory burden for all directly regulated small entities.

E. Unfunded Mandates Reform Act (UMRA)

This proposed action does not contain an unfunded mandate as described in UMRA, 2 U.S.C 1531-1538, and does not significantly or uniquely affect small governments. This proposed action imposes no enforceable duty on any State, local, or tribal governments or the private sector.

F. Executive Order 13132: Federalism

This proposed action does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). It will not have substantial direct effects on the states, on the relationship between the National Government and the states, or on the distribution of power and responsibilities among the various levels of government.

G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

This proposal is to update the delegation of certain NSPS to NWCAA and to approve NWCAA's request to update their NESHAP delegation will not apply in areas of Indian country, and therefore has no tribal implications as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). This proposed action will neither impose substantial direct compliance costs on federally recognized tribal governments, nor preempt tribal law. This proposed action will not impose substantial direct compliance costs on federally recognized Tribal governments because no actions will be required of Tribal governments. This proposed action will also not preempt Tribal law, and thus does not have applicable or related Tribal laws.

H. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

The EPA interprets Executive Order 13045 as applying only to regulatory actions considered significant under section 3(f)(1) of Executive Order 12866 and that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of Executive Order 13045. This proposed action is not subject to Executive Order 13045 because it approves a State program.

I. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use

This proposed action is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866.

J. National Technology Transfer and Advancement Act (NTTAA)

This rulemaking does not involve technical standards. This proposed action 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 Clean Air Act.

Authority: 42 U.S.C. 7401 et seq.