This rule establishes objective criteria for both emissions' intensity and trade exposure for the purpose of identifying emissions-intensive and trade-exposed facilities.

The definitions in this section apply throughout this chapter unless the context clearly requires otherwise. If a section does not provide a definition, the definition found in the definitions from chapter 316, Laws of 2021, and from chapter 173-441 WAC apply in order of precedence.

"Manufacturing facility" means a facility, as defined in WAC 173-441-020, that produces a physical product as its primary activity. A manufacturing facility does not include electric utilities or generators, natural gas utilities, steam producers or distributors, or other sectors that do not manufacture a physical product.

The provisions of this chapter apply to manufacturing facilities that are covered entities under chapter 316, Laws of 2021 (the Climate Commitment Act) regarding classification as emissions-intensive and trade-exposed.

(1) Facilities classified as emissions-intensive and trade-exposed. Facilities engaged in one or more of the processes described by the industry descriptions and codes in the North American Industry Classification System (NAICS) in Table 030-1, as that code is reported under chapter 173-441 WAC, are classified as emissions-intensive and trade-exposed. Use the six digit NAICS codes when available in Table 030-1, otherwise use the shorter NAICS codes listed in Table 030-1 substituting the values in the full reported six-digit NAICS code for "X".

(2) Facilities with NAICS codes reported under chapter 173-441 WAC which are not listed in Table 030-1 may petition the department to be classified as emissions-intensive and trade-exposed according to the process in WAC 173-446A-040.

An owner or operator of a manufacturing facility that is not classified as emissions-intensive and trade-exposed according to WAC 173-446A-030 may petition the department to be classified as emissions-intensive and trade-exposed by following the process described in this section. An owner or operator may submit a petition and the department may issue a determination before emissions year 2027, and use that determination for allowance allocations for the second compliance period, but no determination under this section is effective for the owner or operator of that facility until emissions year 2027. The following requirements apply to the submission, review, and approval or denial of a petition:

(1) Petition submittal. An owner or operator must submit a petition, electronically in a format specified by the department, that meets the following conditions before the department may review the petition and issue a determination.

(a) An owner or operator must submit a complete petition no later than 180 calendar days prior to January 1st of the first emissions year the owner or operator wishes the facility to be classified as emissions-intensive and trade-exposed.

(b) The petition must include sufficient information, as described in (c) of this subsection, for the department to determine whether the petitioner meets the criteria for classification as emissions-intensive and trade-exposed. The department will notify the owner or operator within 30 calendar days of receipt of a petition of any additional information the department requires to review the petition. A facility is not classified as emissions-intensive and trade-exposed until the petition is approved by the department.

(c) The petition must include, at a minimum, the following information:

(i) The name, address, email address, telephone number, and facsimile transmission number (if any) of the person submitting the petition;

(ii) Identifying information as specified in WAC 173-441-050 (3)(a), (c), (i), and (j) of the facility that the owner or operator is petitioning to be classified as emissions-intensive and trade-exposed;

(iii) Annual total production data for each primary product manufactured by the facility. The annual total quantity of each primary product manufactured at the facility as well as the quantity exported outside of Washington state for the five years immediately preceding the petition submission date must be submitted. If the facility has been operational for fewer than five years, submit annual total production data for each product since the facility has been operational;

(iv) The facility's annual on-site GHG emissions data. Annual on-site GHG emissions data for the five years immediately preceding the petition submission date as reported per WAC 173-441-120 must be submitted. If the facility has been operational for fewer than five years, submit annual on-site GHG emissions data as reported per WAC 173-441-120 since the facility has been operational;

(v) The location of the facility relative to overburdened communities. Using the Washington state department of health's environmental health disparities map, submit the total environmental health disparities ranking for the census tract in which the facility is located. Indication if the census tract in which the facility is located is covered or partially covered by tribal lands must also be submitted;

(vi) Any other supporting data or information as requested by the department; and

(vii) The signature of the person completing the petition and the date the petition was signed.

(2) Department review of the petition. A manufacturing facility must receive department approval before it is classified as emissions-intensive and trade-exposed. The department will issue a determination within 90 calendar days after receiving a complete petition.

(a) To be classified as emissions-intensive and trade-exposed, the facility must:

(i) Be a manufacturing facility located and operating in Washington state;

(ii) Be covered under chapter 316, Laws of 2021 (the Climate Commitment Act) or projected to be covered under chapter 316, Laws of 2021 (the Climate Commitment Act);

(iii) Not be classified as emissions-intensive and trade-exposed under WAC 173-446A-030; and

(iv) Meet the criteria for emissions' intensity and trade exposure pursuant to subsection (2)(b) of this section.

(b) The department must apply the following criteria when evaluating a petition:

(i) Emissions' intensity of the facility.

Use Equation 040-1 to determine the emissions' intensity of the facility. If the annual average emissions' intensity is greater than 25,000 MT CO2e/year, the facility is deemed emissions-intensive.

Eq. 040-1

(ii) Trade exposure of the facility.

Use Equation 040-2 to determine the trade share of the facility. If the trade share is greater than or equal to 15%, the facility is deemed trade-exposed.

Eq. 040-2

(c) The department must consider a facility's location relative to overburdened communities and recommendations, if any, from the Environmental Justice Council when evaluating a petition. The department will notify the Environmental Justice Council when a petition is received. The department may deny a petition based on this consideration upon a determination that air quality in overburdened communities would be unacceptably impacted.

(3) Appeal of determination. An approval or denial issued by the department in response to a written petition filed under this subsection is a determination appealable to the pollution control hearings board per RCW 43.21B.110 (1)(h).

If any provision of this chapter or its application to any person or circumstance is held invalid, the remainder of the chapter or the application of the provision to other persons or circumstances is not affected.