[Federal Register Volume 59, Number 159 (Thursday, August 18, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-19774]
[[Page Unknown]]
[Federal Register: August 18, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[WA-TV-1, AD-FRL-5040-1]
Clean Air Act Proposed Interim Approval or Disapproval of
Operating Permit Programs in the State of Washington
AGENCY: U.S. Environmental Protection Agency (EPA).
ACTION: Proposed interim approval.
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SUMMARY: EPA proposes interim approval of the operating permit programs
submitted by the Washington Department of Ecology (Ecology), the
Washington Energy Facility Site Evaluation Council (EFSEC), the
Northwest Air Pollution Authority (NWAPA), the Olympic Air Pollution
Control Authority (OAPCA), the Puget Sound Air Pollution Control Agency
(PSAPCA), the Spokane County Air Pollution Control Authority (SCAPCA),
and the Southwest Air Pollution Control Authority (SWAPCA) for the
purpose of complying with Title V of the Federal Clean Air Act which
mandates that States develop and submit to EPA programs for issuing
operating permits to all major stationary sources and to certain other
sources.
EPA proposes two alternative actions on the operating permit
programs submitted by the Benton-Franklin Counties Clean Air Authority
(BFCCAA) and the Yakima County Clean Air Authority (YCCAA): disapproval
or, if these permitting authorities make certain specified changes to
their operating permit programs by the time EPA takes final action on
this proposed rulemaking, interim approval. In the event of
disapproval, Ecology's operating permit program will apply to sources
located in Benton and Franklin Counties and Yakima County,
respectively.
DATES: Comments on this proposed action must be received in writing by
September 19, 1994.
ADDRESSES: Comments should be sent to Elizabeth Waddell, U.S.
Environmental Protection Agency, Region 10, 1200 Sixth Avenue, AT-082,
Seattle, Washington 98101.
Copies of the State and local agencies' submittals and other
supporting information used in developing the proposed rule are
available for inspection during normal business hours at the following
location: U.S. Environmental Protection Agency, Region 10, 1200 Sixth
Avenue, Seattle, Washington.
FOR FURTHER INFORMATION CONTACT: Elizabeth Waddell, (206) 553-4303.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
A. Introduction
As required under Title V of the Clean Air Act (Act) as amended
(1990), EPA has promulgated rules which define the minimum elements of
an approvable State operating permit program and the corresponding
standards and procedures by which the EPA will approve, oversee, and
withdraw approval of State operating permit programs (see 57 FR 32250
(July 21, 1992)). These rules are codified at 40 Code of Federal
Regulations (CFR) Part 70. Title V requires States to develop and
submit to EPA programs for issuing these operating permits to all major
stationary sources and to certain other sources.
The Act requires that States develop and submit these programs to
EPA by November 15, 1993, and that EPA act to approve or disapprove
each program within one year after receiving the submittal. EPA's
program review occurs pursuant to section 502 of the Act and Part 70
which together outline criteria for approval or disapproval. Where a
program substantially, but not fully, meets the requirements of Part
70, EPA may grant the program interim approval for a period of up to
two years. If EPA has not fully approved a program by two years after
the November 15, 1994 date, or by the end of an interim program, it
must establish and implement a federal program.
II. Proposed Action and Implications
A. Analysis of Submission by State and Local Authorities
1. Support Materials
The program submittal by the State of Washington includes
submissions by Ecology, EFSEC and the seven local air pollution control
authorities (local air authorities). Collectively, these submissions
meet the requirements of 40 CFR Part 70, Sec. 70.4, for a complete
program submittal including a letter of submittal from the Washington
Governor's designee requesting program approval, complete program
descriptions, the legal opinions of the Attorney General and the
attorneys of the local air authorities, permit program documentation,
and fully adopted implementing regulations of Ecology, EFSEC and the
local air authorities. An implementation agreement is currently being
developed between Ecology, EFSEC, and the local air authorities
(collectively, the permitting authorities) and EPA.
2. Regulations and Program Implementation
a. Ecology. The statutes authorizing the Washington state operating
permit program are contained in chapter 70.94 of the Revised Code of
Washington (RCW), in particular RCW 70.94.161 (Operating Permits for
Air Contaminant Sources--Generally--Fees, report to legislature),
70.94.162 (Annual fees from operating permit program sources to cover
cost of program) and 70.94.422 (Department of health powers regarding
radionuclides--Energy facility site evaluation council authority over
permit program sources). RCW 70.94.161(2)(a) required Ecology to
promulgate rules for a state-wide operating permit program consistent
with Title V of the Clean Air Act. Chapter 173-401 of the Washington
Annotated Code (WAC) sets out the specific requirements of the state-
wide operating permit program. This rule, together with ch. 70.94 RCW,
and the other supporting statutes and regulations submitted by Ecology,
substantially meet the requirements of 40 CFR Part 70, Section 70.2 and
70.3 for applicability, Section 70.4, 70.5, and 70.6 for permit content
including operational flexibility, Section 70.7 for public
participation and minor permit modifications, Section 70.5 for criteria
which define insignificant activities, Section 70.11 for requirements
for enforcement authority, and Section 70.5 for complete application
forms.
b. EFSEC. RCW 70.94.422(2) gives EFSEC authority to issue operating
permits to and administer the operating permit program for large energy
facilities regulated under ch. 80.50 RCW, and does not require EFSEC to
apply to Ecology for delegation of the operating permit program. EFSEC
has adopted by reference all of ch. 173-401 WAC and the provisions of
ch. 173-400 WAC necessary to implement the operating permit program
(see WAC 463-39-005). In issuing Title V permits, EFSEC will contract
with Ecology or the local air authority with jurisdiction over the
geographic area where the EFSEC source is located to develop the air
operating permit which will be incorporated into the source's
``certification,'' the document containing all requirements with which
the EFSEC source must comply. EFSEC has used this approach in the past
for Prevention of Significant Deterioration and water quality
permitting issues.
c. Local Air Authorities. RCW 70.94.161(2)(b) authorizes local air
authorities to request delegation from Ecology to implement the
operating permit program for sources within their respective
jurisdictions. Each of Washington's seven local air authorities, which
together cover 22 of the 39 counties in the State, has requested and
received delegation from Ecology contingent on EPA approval of the
local air authority operating permit program. All Title V sources
within the jurisdiction of a delegated local air authority will be
subject to the operating permit program of such local air authority,
except for primary aluminum smelters, kraft pulping mills, sulfite
pulping mills, energy facilities under EFSEC's jurisdiction and sources
on the U.S. Department of Energy's Hanford Nuclear Reservation. These
sources, along with sources in the 17 counties not covered by local air
authorities, will be subject to Ecology's operating permit program,
with the exception of energy facilities that will be subject to EFSEC's
program.
Each of the seven local air authorities has promulgated a rule
authorizing the assessment and collection of fees from permit program
sources as required by State law (see RCW 70.94.162(1)). With respect
to the other requirements of the operating permit program, the local
air authorities have taken one of four different approaches to program
implementation. SCAPCA has not promulgated any rules to implement Title
V, except for fee rules. Instead, SCAPCA will be implementing the
operating permit program by enforcing the State rule, ch. 173-401 WAC,
as authorized by State law (see RCW 70.94.161(2)(a)). SWAPCA has issued
a local rule which restates the State operating permit rule (see SWAPCA
Ch. 401). NWAPA, PSAPCA and OAPCA have each adopted rules requiring
operating permit program sources subject to their respective
jurisdictions to comply with the State operating permit program rule
(see NWAPA Sec. 326; PSAPCA Reg. I, Sec. 7.01, 7.03 and 7.05; OAPCA
Reg. 1, Sec. 6.01).
BFCCAA and YCCAA have each adopted a rule expressing the
authority's intent to implement the State air operating permit program
(BFCCAA Reg. 1, Sec. 4.01; YCCAA Reg. I, Sec. 6.01 and Sec. 12.01), and
have also adopted rules addressing which sources are subject to the
program; program delegation; permit application; permit content; permit
issuance, renewal, reopenings and revisions; public involvement; and
fee assessment (see BFCCAA Reg. 1, Sec. 4.02-4.08; YCCAA Reg. I, Sec.
6.02-6.09). These rules do not, however, cover many of the requirements
of Part 70. Although both BFCCAA and YCCAA apparently intended that the
State operating permit rule (ch. 173-401 WAC) would supplement and fill
in the gaps in their local regulations, there is a serious question
regarding whether this is the case.
There are many potential inconsistencies between the operating
permit regulations of BFCCAA and YCCAA and the operating permit rule of
the State. For example, the local regulations require that renewal
applications be submitted at least six months prior to the expiration
of the permit but do not place any outside limit on the submission of a
renewal application (see BFCCAA Reg. 1, Sec. 4.06(C); YCCAA Reg. I,
Sec. 6.06). State law, however, as required by Title V, provides that
in no event shall a renewal application be submitted more than 18
months before the expiration of the permit (see WAC 173-401-710(1)).
Because the local regulations were adopted after ch. 173-401 WAC, it is
questionable whether the provisions of the State operating permit rule
that are inconsistent with the operating permit rules of BFCCAA and
YCCAA could be enforced against a Title V source. This is especially
true for YCCAA because the YCCAA regulation that incorporates ch. 173-
401 WAC by reference states that State regulations are not adopted to
the extent they are inconsistent with any YCCAA regulations (see YCCAA
Reg. I, Sec. 12.01).
d. Tribal Lands. The Governor's letter to EPA states that Ecology,
EFSEC and the delegated local air authorities will serve as the
permitting authorities for sources over which they each, respectively,
have jurisdiction. Except with respect to certain sources located on
the Puyallup Reservation, there is no further discussion in the
submittals of Ecology, EFSEC or the local air authorities of any basis
for the assertion of jurisdiction by Washington permitting authorities
over sources on Tribal lands.
Opinion letters from the Washington Attorney General and PSAPCA's
attorney rely on the Washington Indian (Puyallup) Land Claims
Settlement, 25 USC sections 1773-1773j, and the Agreement between the
Puyallup Tribe of Indians, Local Governments in Pierce County, the
State of Washington, the United States of America, and certain private
property owners, dated August 27, 1988 (Settlement Agreement) to
support their assertion of jurisdiction over portions of the Puyallup
Reservation. The Settlement Agreement specifically gives federal, state
and local governments exclusive jurisdiction for the administration and
implementation of federal, state and local environmental laws on all
non-trust lands within the 1873 Survey Area and gives the federal
government and the Puyallup Tribe the same exclusive jurisdiction over
all trust and restricted lands within the 1873 Survey Area (as ``non-
trust lands,'' ``trust lands,'' ``restricted lands'' and ``1873 Survey
Area'' are defined in the Settlement Agreement). Based on the terms of
the Settlement Agreement, EPA is proposing to grant interim approval of
the operating permit programs of Ecology and PSAPCA for all non-trust
lands within the 1873 Survey Area of the Puyallup Reservation.
Because the Washington permitting authorities have not
demonstrated, consistent with applicable principles of Indian law and
federal Indian policies, legal authority to regulate other sources on
Tribal lands under the Clean Air Act, the proposed interim approval of
the Washington operating permit programs will not extend to any trust
or restricted lands within the Puyallup 1873 Survey Area or to lands
within the exterior boundaries of any other Indian Reservation.1
Title V sources located within the exterior boundaries of other Indian
Reservations in Washington will be subject to the federal operating
permit program, to be promulgated at 40 CFR Part 71, or subject to the
operating permit program of any Tribe approved after issuance of the
regulations under Section 301(d) of the Clean Air Act authorizing EPA
to treat Tribes in the same manner as States for appropriate Clean Air
Act provisions.2
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\1\This is not a determination that the Washington permitting
authorities could not possibly demonstrate jurisdiction over sources
within the exterior boundaries of Indian Reservations in Washington.
However, no such showing has been made, except as discussed above
with respect to portions of the Puyallup Reservation.
\2\Tribes may also have inherent sovereign authority to regulate
air pollutants from sources on Tribal lands.
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e. Applicable Requirements. Part 70 requires that all federally-
enforceable applicable requirements be included in an operating permit
(see 40 CFR 70.4(3)(v) and 70.6(a)). RCW 70.94.161(10) could be read to
require that only the most stringent of any federal, state or local
requirement be included in the permit. According to the Attorney
General's opinion, however, this provision does not preclude Washington
permitting authorities from including all federally-enforceable
applicable requirements in the permit, and several other State
regulations in fact require the permitting authority to do so. The
Attorney General first points to RCW 70.94.161(2)(a), which requires
that the rules establishing the State's permitting program be
consistent with the Federal Clean Air Act. The Attorney General then
relies on WAC 173-401-600, which requires that the permit assure
compliance with all applicable requirements and that, where a federally
enforceable applicable requirement is less stringent than a State or
local requirement, both the federal requirement and the State or local
requirement be included in the permit. EPA notes, as well, that WAC
173-401-625(b) specifically requires any ``state-only'' terms and
conditions be designated as not being federally enforceable. In order
for a permit to assure compliance with a federally enforceable
applicable requirement which is less stringent than a ``state-only''
requirement, both requirements would have to be included in the permit.
Moreover, EPA notes that pursuant to WAC 173-401-640 a Title V source
would be shielded from enforcement of a federally-enforceable
applicable requirement only if the requirement is included in the
permit or is specifically determined not to be applicable. Based on the
opinion of the Attorney General and on the assurances of the Washington
permitting authorities that all federally-enforceable applicable
requirements will be included in Title V permits, EPA believes that RCW
70.94.161(10) does not preclude approval of the Washington submittal.
f. Compliance Orders. WAC 173-400-161 authorizes Washington
permitting authorities to issue regulatory orders requiring that
sources be brought into compliance in accordance with a compliance
schedule.3 It further provides that a source which has been issued
such a regulatory order shall be deemed to be in compliance with ``this
chapter'' if the source is in compliance with all of the requirements
of the regulatory order, including the compliance schedule. This
provision would pose a problem for Title V approval if a Washington
permitting authority would be precluded from assessing penalties
against a source with a Title V operating permit who had been issued
and was in compliance with such a regulatory order, but was not in
compliance with the underlying permit requirements. It would also be
problematic if a compliance schedule submitted by a source pursuant to
WAC 173-401-510(2)(h)(iii) became a regulatory order under WAC 173-400-
161 when it becomes a part of a Title V operating permit and thus
precluded the permitting authority from assessing penalties for the
source's noncompliance with the underlying permit requirements.
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\3\EFSEC has incorporated this provision by reference (see WAC
463-39-005). Several local air authorities have comparable
provisions (see OAPCA Reg. 1, Sec. 329; SCAPCA Reg. I, Art. VII;
SWAPCA 400-161). The same analysis of the State's authority to issue
compliance orders applies for EFSEC and these local air authorities.
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The Attorney General's opinion states that a regulatory order
issued under WAC 173-400-161 is a completely separate device from a
Title V operating permit issued under ch. 173-401 WAC, even though both
may contain compliance schedules. Moreover, the Attorney General's
letter points out that WAC 173-401-620(2) makes any noncompliance with
a Title V permit grounds for an enforcement action and that a permit
condition can be changed only through a permit modification, not a
regulatory order. Finally, the Attorney General states that even if a
compliance schedule is issued under WAC 173-400-161 to a Title V
source, compliance with such a schedule only constitutes compliance
with the requirements of ``this chapter,'' ch. 173-400 WAC, and not the
operating permit rule, ch. 173-401 WAC. Therefore, a source could still
be subject to an enforcement action for being in violation of the
permit but in compliance with the compliance schedule. Based on the
Attorney General's opinion, EPA believes that WAC 173-400-161 does not
bar approval of the Washington submittal. If, during program
implementation, Washington permitting authorities issue regulatory
orders containing compliance schedules to Title V sources without
collecting appropriate penalties, EPA will consider this grounds for
withdrawing approval of such permitting authority's program in
accordance with the provisions of 40 CFR 70.10(c).
g. Technical Assistance Visits. Washington has two statutes which
address violations observed during technical assistance visits, RCW
43.21A.087 and RCW 70.94.035. RCW 70.94.035, which was enacted in 1991
and specifically applies to the air program, prohibits enforcement
action ``unless and until the facility owner or operator has been
provided a reasonable time to correct the violation.'' According to the
Attorney General's opinion, this provision does not prevent a
permitting authority from commencing an enforcement action for a
violation observed during a technical assistance visit, but merely
requires the permitting authority to give the source a reasonable
opportunity to comply before deciding whether enforcement action is
appropriate. The Attorney General similarly interprets RCW 43.21A.087,
enacted in 1992, which allows the permitting authority to reinspect the
facility and take enforcement action ``[i]f the owner or operator of
the facility does not correct the violation.''4 The Attorney
General also states that because RCW 70.94.035 applies specifically to
the air program and specifically requires that the technical assistance
program be consistent with the Federal Clean Air Act, this provision
would prevail in the event of any conflict with RCW 43.21A.087, which
applies to technical assistance visits under all of Ecology's
environmental programs. EPA does not believe the plain language of RCW
43.21A.087 supports the Attorney General's opinion and that it could
prohibit enforcement action if a violation observed during a technical
assistance visit is promptly corrected. EPA does agree, however, that
RCW 70.94.035 would allow enforcement action in such a case provided
the enforcement action was commenced after the source had had an
opportunity to comply. EPA also believes that RCW 70.94.035, and not
RCW 43.21A.087, applies in the case of technical assistance visits
under the air program. EPA therefore believes that Washington's
technical assistance statutes, as interpreted by the Attorney General,
do not bar approval of Washington's operating permit program.
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\4\Both statutes allow Ecology to commence immediate enforcement
action for any violation that places anyone in imminent danger of
death or substantial bodily harm or causes substantial property
damage.
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h. Variances. State law allows sources to petition the permitting
authority for a variance from requirements governing the quality,
nature, duration or extent of discharges of air contaminants (see RCW
70.94.181; WAC 173-400-180)). Each of the local air authorities has
also adopted a regulation authorizing variances under certain
circumstances (see BFCCAA Reg. 1, Sec. 3.01; NWAPA Sec. 350; PSAPCA
Reg. I, Sec. 4.01; OAPCA Reg. 1, Sec. 3.23; SCAPCA Reg. I, Art. III;
SWAPCA Reg. 401-180; YCCAA Reg. I, Sec. 7.01). State law also prohibits
any State or local air authority from incorporating a variance in a
permit unless the variance has been approved by EPA as part of the
State Implementation Plan or from issuing a variance that sets aside or
delays any requirements of the Federal Clean Air Act except with the
approval and written concurrence of the EPA (see RCW 70.94.181(8); WAC
173-400-180(3)). The program submittal is approvable based on these
limitations on the issuance of variances.5
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\5\Although the variance regulations of BFCCAA, NWAPA, SWAPCA
and YCCAA do not expressly state that EPA must approve any variance
to requirements of the Federal Clean Air Act or any variance
incorporated into an operating permit, the Attorney General's
opinion letter confirms that State law prohibits a local authority
from issuing such a variance.
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i. Additional Information. The full program submittal and the
Technical Support Document are available for review for more detailed
information about this proposed action.
3. Permit Fee Demonstration
a. EFSEC. RCW 80.50.071(1)(b) and (c) require that an applicant for
an EFSEC certification pay all ``reasonable costs actually and
necessarily incurred'' by EFSEC in processing applications and
inspecting and determining compliance. RCW 70.94.422(2) additionally
gives EFSEC the same authority as local air authorities to collect fees
from Title V sources subject to EFSEC's jurisdiction. As discussed
above, EFSEC will contract with Ecology or the relevant local air
authority to perform certain technical tasks, including developing the
Title V permit terms and monitoring compliance with those terms.
Ecology and any participating local air authority will then charge
EFSEC the same fees they would charge a source subject to their
jurisdiction for issuing a permit and monitoring compliance. EFSEC will
pass these fees onto the EFSEC source, along with its administrative
costs (staff costs) for the air operating permit program as
``reasonable costs actually and necessarily incurred'' by EFSEC in
processing applications and inspecting and determining compliance.
EFSEC estimates its air operating permit program administrative costs
to be approximately $1,121 per year per source. Based on this estimate,
EPA believes that the combined contract and administrative fees are
sufficient to meet the Act's requirements to cover the permit program
costs.
b. NWAPA and SWAPCA. NWAPA and SWAPCA have opted for fees below the
presumptive minimum ($30.18 a ton for FY95). NWAPA will collect the
equivalent of $19.29 per ton for the first year of the program.
Operating permit fees will be based on a two-tiered model in which 20%
of the total fees collected will be distributed equally between all the
affected sources and 80% will be distributed based on the quantity of
emissions emitted by each of the sources. In addition to the fees
assessed by NWAPA, each of the sources will also be responsible for a
portion of Ecology's oversight costs. EPA believes the combined State
and local air authority fees are sufficient to cover the permit program
costs based on NWAPA's detailed fee demonstration using a workload
analysis. NWAPA is a small agency in a relatively rural and low cost
area of the State. There are several sources in its jurisdiction that
emit very large tonnages but few sources overall. This high ratio of
tons of emissions to number of permits lowers the cost per ton of
implementing an operating permit program. NWAPA has committed in its
submittal to review its fee schedule annually and increase fees, as
needed, to reflect actual program implementation costs.
SWAPCA will collect the equivalent of $19.13 per ton for the first
year of the program. Operating permit fees will be based on a three-
tiered model with equal weight given to each part. The model divides
the fees collected into a flat fee for all affected sources, a fee
based on quantity of emissions, and a fee based on the complexity of
the permit. In addition to the fees assessed by the Authority, each of
the sources will also be responsible for a portion of Ecology's
oversight costs. EPA believes that the combined State and local air
authority fees are sufficient to cover permit program costs based on
SWAPCA's detailed fee demonstration using a workload analysis. As with
NWAPA, SWAPCA is a small agency in a relatively rural and low cost area
of the State with several sources in its jurisdiction that emit very
large quantities of emissions but few sources overall. Once again, this
high ratio of tons of emissions to number of permits lowers the cost
per ton of implementing an operating permit program. SWAPCA has
committed in its submittal to review its fee schedule annually and to
increase fees, as needed, to reflect actual program implementation
costs.
c. Ecology, BFCCAA, OAPCA, PSAPCA, SCAPCA and YCCAA. The fees to be
assessed by Ecology, BFCCAA, OAPCA, PSAPCA, SCAPCA, and YCCAA all
exceed the presumptive minimum. Fees range from $40 per ton to $64.72
per ton. In addition, each agency provided a detailed fee
demonstration. Together, all permitting authorities in Washington will
collect an estimated $4.6 million in the first year of program
implementation. Each permitting authority has committed in its
submittal to review its fee schedule annually and to increase fees, as
needed, to reflect actual program implementation costs.
4. Provisions Implementing the Requirements of Other Titles of the Act
a. Authority and Commitments for Section 112 Implementation. The
Washington permitting authorities have indicated in their Title V
program submittals that they are constitutionally precluded from
implementing and enforcing future federally-promulgated applicable
requirements by reference, but must instead first adopt state
regulations in order to incorporate such requirements into permits and
enforce them. Ecology has demonstrated, however, that it has broad
legal authority to adopt regulations necessary to implement any and all
section 112 requirements (see RCW 70.94.141(1); 70.94.331(2)). The
local air authorities may include these requirements in their Title V
permits as soon as Ecology adopts such requirements (see RCW
70.94.161(2)(a)).\6\ EFSEC, which has the legal authority to adopt air
quality standards consistent with those established by Ecology and the
local air authorities (see RCW 70.94.422(2)), intends to incorporate by
reference the section 112 standards adopted by Ecology. In their
submittal, the Washington permitting authorities have committed to
adopting regulations necessary to implement the section 112
requirements in a timely manner.
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\6\A local authority may also promulgate its own requirements,
which may be not less stringent than those promulgated by Ecology
(see RCW 70.94.331(6); WAC 173-400-020(2)).
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EPA has determined that this broad statutory and regulatory
authority is adequate for the Washington permitting authorities to
implement all section 112 requirements provided they expeditiously
adopt appropriate implementing regulations as new federal regulations
are promulgated. EPA regards the commitments of the Washington
permitting authorities as an acknowledgement of their obligation to
adopt regulations necessary to issue permits that assure compliance
with section 112 applicable requirements. Should a Washington
permitting authority fail to adopt regulations necessary to maintain
adequate legal authority to issue timely permits, EPA will consider
this grounds for withdrawing approval of such permitting authority's
program in accordance with the provisions of 40 CFR 70.10(c). For
further discussion of this determination, please refer to the April 13,
1993 guidance memorandum entitled ``Title V Program Approval Criteria
for Section 112 Activities,'' signed by John Seitz.
b. Implementation of Section 112(g) Upon Program Approval. After
the effective date of the Washington operating permit programs, no new
major source or major modification to an existing major source may be
constructed unless it has been subject to a case-by-case determination
of maximum achievable control technology (MACT) or offsets by the
permitting authority under section 112(g) of the Federal Clean Air Act.
The results of such case-by-case determination of MACT or offsets must
be federally-enforceable by the time that construction begins on the
new source or modification. Unless and until the Washington permitting
authorities\7\ submit, and EPA approves, air toxics permitting
regulations, there will be no mechanism for making federally-
enforceable MACT or offset determinations, thereby effectively
prohibiting construction of new major sources and major modifications
to existing major sources as of the date EPA grants interim approval of
the Washington operating permit programs.
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\7\As stated above, as a matter of State law, once Ecology
adopts air toxics permitting regulations, the local air authorities
may either directly implement Ecology's regulations, may incorporate
Ecology's regulations by reference or may adopt their own, more
stringent regulations. The EFSEC must incorporate Ecology's
regulations by reference or adopt their own regulations.
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Because EPA has not yet promulgated regulations to implement
section 112(g) of the Act, EPA has determined it has authority to
approve many existing state air toxics permitting regulations under the
authority of Title V and sections 112(g) and 112(l) of the Act solely
for the purpose of implementing section 112(g) during the transition
period between Title V approval and adoption of State rules
implementing EPA's forthcoming section 112(g) regulations. Submission
by Washington and approval by EPA of Washington's existing state air
toxics permitting rules could provide Washington permitting authorities
with an interim mechanism for establishing federally-enforceable
restrictions for section 112(g) purposes. The scope of such an approval
of Washington's air toxic regulations would be narrowly limited to
section 112(g) and would not confer or imply approval for purposes of
any other provision under the Act. Furthermore, such approval would be
for an interim period only, until such time as the Washington
permitting authorities adopt regulations consistent with regulations
promulgated by EPA to implement section 112(g) of the Act. Accordingly,
if Washington submits its existing air toxics permitting rules and EPA
determines that such rules are approvable pending adoption of State
rules implementing EPA's forthcoming section 112(g) regulations, EPA
would limit the duration of such an approval to a reasonable time
following promulgation of section 112(g) regulations so that the
Washington permitting authorities act expeditiously to adopt
regulations consistent with the section 112(g) regulations.
c. Delegation of Section 112 Standards. As discussed above, State
law prohibits Washington permitting authorities from implementing and
enforcing federal standards until they are adopted as State or local
regulations. Therefore, the Washington permitting authorities can only
request, and EPA can only grant, delegation of section 112 standards
after the Washington permitting authorities adopt and submit their
regulations to EPA for approval under section 112(l) of the Act.
The Washington permitting authorities have adopted all of the
National Emission Standards for Hazardous Air Pollutants (NESHAP) in 40
CFR part 61 and have submitted a request for delegation of those
standards in accordance with section 112(l) of the Act. Since the
adopted regulations and the requests for delegation cover sources in
addition to those subject to Title V, EPA will be acting on these
request under separate rulemaking pursuant to the provisions of 40 CFR
part 63.
d. Commitments for Title IV Implementation. The Washington
permitting authorities have committed to adopting and submitting to EPA
by January 1, 1995, a program implementing Title IV of the Clean Air
Act. This commitment is supported by adequate legal authority (see RCW
70.94.161(2)(c)).
B. Options for Approval/Disapproval and Implications
1. Ecology, EFSEC, NWAPA, OAPCA, PSAPCA, SCAPCA, and SWAPCA
EPA is proposing to grant interim approval to the operating permit
programs submitted on November 1, 1993, by Ecology, EFSEC, NWAPA,
OAPCA, PSAPCA, SCAPCA, and SWAPCA.\8\ If and when this proposed action
becomes final, these permitting authorities must make the following
changes to receive full approval:\9\
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\8\The scope of this action does not include the issuance of
permits or the enforcement of standards for sewage sludge
incinerators under Section 405 of the Clean Water Act, 42 USC 1345.
Delegation of sewage sludge incinerator permitting under the Clean
Water Act, if requested by the State, would be considered in a
separate administrative action (see 40 CFR Parts 122 and 501).
\9\All changes required for Ecology to receive full approval
must be made before EFSEC or any local air authority may receive
full approval. In addition, in order to receive full approval, EFSEC
and each local air authority must make such changes to their
regulations as are necessary under applicable State and local law to
incorporate into their respective regulations all required changes
to Ecology's operating permit program.
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a. Ecology. (1) Revise WAC 173-401-200(33), the definition of
``Title I modification,'' to include any modification permitted through
a minor source preconstruction permit. The EPA believes the phrase
``modification under an provision of title I of the Act'' in 40 CFR
70.7(e)(2)(i)(A)(5) is best interpreted to mean literally any change at
a source that would trigger permitting authority review under
regulations approved or promulgated under Title I of the Act. This
would include State preconstruction review programs approved by EPA as
part of the State Implementation Plan under section 110(a)(2)(C) of the
Clean Air Act and regulations addressing source changes that trigger
the application of NESHAP established pursuant to section 112 of the
Act prior to the 1990 amendments. The EPA intends to revise its
criteria for interim approval in 40 CFR 70.4(d) prior to taking final
action on this proposal to grant Washington interim approval so that
interim approval may be granted to State programs like Washington's
that currently allow a more narrow definition of Title I modification.
As noted, EPA believes the better interpretation of ``Title I
modifications'' would preclude granting full approval to the Washington
program. However, in the proposal to revise part 70, EPA will be taking
comment on whether the criteria in 40 CFR 70.7(e)(2)(i)(A), including
the phrase ``modification under any provision of title I,'' should be
interpreted in a manner that would allow changes reviewed under
programs approved pursuant to section 110(a)(2)(C) and changes that
trigger the application of NESHAP established pursuant to section 112
prior to the 1990 Amendments to be eligible for processing through
minor modification procedures. Should EPA adopt this alternative
interpretation, the definition of ``Title I modification'' in the
Washington program would then be fully consistent with Part 70.
(2) Revise RCW 70.94.430(1) to provide for maximum criminal
penalties of not less than $10,000 per day per violation, as required
by 40 CFR 70.11(a)(3)(ii). Existing language appears to cap penalties
for criminal violations at $10,000. The civil penalty authority in RCW
70.94.431(1) already meets the requirements of 40 CFR 70.11(a)(3)(i)
for maximum civil penalties of not less than $10,000 per day per
violation.
(3) Revise RCW 70.94.430 to allow the imposition of criminal
penalties against any person who knowingly makes any false material
statement, representation or certification in any form, in any notice
or report required by a permit, as required by 40 CFR 70.11(a)(3)(iii).
This provision must include maximum penalties of not less than $10,000
per day per violation.
The Attorney General's opinion states that false reporting is a
criminal violation under Washington law because RCW 70.94.430(1) makes
it unlawful to knowingly violate any regulations adopted under ch.
70.94 RCW, and WAC 173-401-520 requires that all application forms,
reports and compliance certifications submitted pursuant to ch. 173-401
WAC contain a certification as to their truth, accuracy and
completeness. This authority, however, does not appear to be as broad
as that required by 40 CFR 70.11(a)(3)(iii). Knowing violation of the
certification requirement of WAC 173-401-520 would be only one criminal
violation even if the document which was falsely certified covered
several false material statements. Under 40 CFR 70.11(a)(3)(iii), each
false material statement must be subject to a criminal penalty.
Moreover, accepting the State's interpretation would render the
specific requirement of 40 CFR 70.11(a)(3)(iii) entirely superfluous.
Because Part 70 otherwise requires States to have the provisions on
which the Attorney General relies (see 40 CFR 70.5(d) and
70.11(a)(3)(ii)), no State would have to make any additional showing of
the authority required by 40 CFR 70.11(a)(3)(iii) under the State's
interpretation.
(4) Revise RCW 70.94.430 to allow the imposition of criminal
penalties against any person who knowingly renders inaccurate any
required monitoring device or method, as required by 40 CFR
70.11(a)(3)(iii). This provision must include maximum penalties of not
less than $10,000 per day per violation.
As authority for this requirement, the Attorney General's opinion
states that a knowing violation of WAC 173-400-040(7), which prohibits
the use of any means which conceals or masks an emission of an air
contaminant, would subject the offender to criminal penalties under RCW
70.94.430(1). Again, however, this authority does not appear to be as
broad as that required by 40 CFR 70.11(a)(3)(iii). WAC 173-400-040(7)
only prohibits tampering that conceals air emissions; it would not
prohibit tampering with equipment that monitors secondary parameters,
such as fuel content or production rate.
(5) Delete WAC 173-401-735(3) entirely or revise it so that it
refers to RCW 34.05.570(4)(b), rather than RCW 7.16.360. Part 70
requires that State law provide a cause of action in State court for
the permitting authority's failure to take final action on a permit
within the specified time period (see 40 CFR 70.4(b)(3)(xi)). WAC 173-
401-735(3) authorizes a person to seek a writ of mandamus in such a
case ``[a]s provided in chapter 7.16 RCW.'' Chapter 7.16 RCW, however,
authorizes the issuance of a writ of mandamus only if there is no other
remedy available (see RCW 7.16.360). RCW 34.05.570(4)(b) provides an
express cause of action for an agency's failure to take a required
action. Therefore, WAC 173-401-735(3) must be revised to delete the
reference to ch. 7.16 RCW as the basis for the cause of action.
(6) Revise WAC 173-401-530(2) to define an emissions unit as
insignificant only if it is subject to no federally enforceable
applicable requirement and delete the last sentence in WAC 173-401-
200(16) (``These units and activities are exempt from permit program
requirements except as provided in WAC 173-401-530.''). Under 40 CFR
70.5(c), EPA may approve as part of a State program a list of
insignificant activities and emissions levels which need not be
included in permit applications. However, no activity for which there
is an applicable requirement may be defined as insignificant. The
Washington State Implementation Plan includes several ``generally''
applicable requirements (e.g. a 20% opacity limit for all emission
units) that apply to any and all emission points and are ``applicable
requirements'' under the part 70 rules. Together, WAC 173-401-530(2)
and the last sentence of WAC 173-401-200(16) relieve sources from the
requirement of demonstrating and certifying compliance with these
``generally'' applicable requirements for emission units that are
subject to no other applicable requirement and meet the other criteria
for insignificance (e.g. size, production rate, emission level). WAC
173-401-530(1) clarifies that these insignificant activities must still
comply with all requirements. WAC 173-401-530(2)(b) requires that all
such generally applicable requirements to which the source is subject
be listed in the application and the permit. The program, taken as a
whole, substantially fulfills the requirement under 40 CFR 70.6(a)(1)
that a permit include emission limitations and standards that assure
compliance with all applicable requirements.
b. NWAPA.
(1) Revise NWAPA Sec. 132.1 to provide for maximum criminal
penalties of not less than $10,000 per day per violation, as required
by 40 CFR 70.11(a)(3)(ii). Existing language appears to cap penalties
for criminal violations at $10,000.
(2) Revise NWAPA Sec. 132 to allow the imposition of criminal
penalties against any person who knowingly makes any false material
statement, representation or certification in any form, in any notice
or report required by a permit, as required by 40 CFR 70.11(a)(3)(iii).
See discussion above in paragraph (3) of Ecology's interim approval
issues.
(3) Revise NWAPA Sec. 132 to allow the imposition of criminal
penalties against any person who knowingly renders inaccurate any
required monitoring device or method, as required by 40 CFR
70.11(a)(3)(iii). See discussion above in paragraph (4) of Ecology's
interim approval issues.
(4) Revise NWAPA Sec. 133.1 to provide for maximum civil penalties
of not less than $10,000 per day per violation in the case of
violations of multiple standards by a specific emissions unit, as
required by 40 CFR 70.11(a)(3). Existing language appears to cap
penalties for violations of multiple standards by a specific emissions
unit at $10,000.
c. PSAPCA.
(1) Revise PSAPCA Reg. I, Sec. 3.13(a) to provide for maximum
criminal penalties of not less than $10,000 per day per violation, as
required by 40 CFR 70.11(a)(3)(ii). Existing language appears to cap
penalties for criminal violations at $10,000.
(2) Revise PSAPCA Reg. I, Sec. 3.13 to allow the imposition of
criminal penalties against any person who knowingly makes any false
material statement, representation or certification in any form, in any
notice or report required by a permit, as required by 40 CFR
70.11(a)(3)(iii). See discussion above in paragraph (3) of Ecology's
interim approval issues.
(3) Revise PSAPCA Reg. I, Sec. 3.13 to allow the imposition of
criminal penalties against any person who knowingly renders inaccurate
any required monitoring device or method, as required by 40 CFR
70.11(a)(3)(iii). See discussion above in paragraph (4) of Ecology's
interim approval issues.
d. OAPCA.
(1) Revise OAPCA Reg. 1, Sec. 3.27(b)(1) to provide for maximum
criminal penalties of not less than $10,000 per day per violation, as
required by 40 CFR 70.11(a)(3)(ii). Existing language appears to cap
penalties for criminal violations at $10,000.
(2) Revise OAPCA Reg. 1, Sec. 3.27(b) to allow the imposition of
criminal penalties against any person who knowingly makes any false
material statement, representation or certification in any form, in any
notice or report required by a permit, as required by 40 CFR
70.11(a)(3)(iii). See discussion above in paragraph (3) of Ecology's
interim approval issues.
(3) Revise OAPCA Reg. 1, Sec. 3.27(b) to allow the imposition of
criminal penalties against any person who knowingly renders inaccurate
any required monitoring device or method, as required by 40 CFR
70.11(a)(3)(iii). See discussion above in paragraph (4) of Ecology's
interim approval issues.
(4) Revise the definition of ``potential to emit'' in OAPCA Reg. 1,
Sec. 6.00 to provide that any physical or operational limitation on the
capacity of a source to emit a pollutant shall be treated as part of
its design only if the limitation is federally enforceable (see 40 CFR
70.2 (definition of potential to emit)). OAPCA regulations currently
define ``potential to emit'' to include any such limitation that is
enforceable by OAPCA.
e. SCAPCA.
(1) Revise SCAPCA Reg. I, Sec. 2.04(B) to eliminate the limitation
on the control officer's authority to request criminal penalties to
cases in which a violator has failed to correct the violation after a
``reasonable and/or required period of time.'' Sections 70.11(a)(3)
(ii) and (iii) require that States have authority to impose a criminal
penalty for each day of violation. A requirement that a violator can be
subject to criminal penalties only if the violator fails to correct the
violation after an opportunity to comply is inconsistent with the
requirements of part 70.
(2) Revise SCAPCA Reg. I, Sec. 2.11(A)(1) to provide for maximum
criminal penalties of not less than $10,000 per day per violation, as
required by 40 CFR 70.11(a)(3)(ii). Under existing language, it is not
clear that criminal penalties may be assessed for each day on which a
violation occurs.
(3) Revise SCAPCA Reg. I, Sec. 2.11(A) to allow the imposition of
criminal penalties against any person who knowingly makes any false
material statement, representation or certification in any form, in any
notice or report required by a permit, as required by 40 CFR
70.11(a)(3)(iii). See discussion above in paragraph (3) of Ecology's
interim approval issues.
(4) Revise SCAPCA Reg. I, Sec. 2.11(A) to allow the imposition of
criminal penalties against any person who knowingly renders inaccurate
any required monitoring device or method, as required by 40 CFR
70.11(a)(3)(iii). See discussion above in paragraph (4) of Ecology's
interim approval issues.
f. SWAPCA. No changes in the SWAPCA operating permit program are
necessary to receive full approval other than those that may be
necessary under applicable State and local law to incorporate into
SWAPCA's regulations all required changes to Ecology's operating permit
program.
2. BFCCAA and YCCAA
a. Required changes for interim approval. As discussed above, there
is a serious question regarding whether BFCCAA and YCCAA have
effectively incorporated by reference the State operating permit rule
and, if so, whether the provisions of the State operating permit rule
that are inconsistent with the operating permit rules of BFCCAA and
YCCAA could be enforced against a Title V source. On that basis, EPA
proposes disapproval of the operating permit programs submitted by
BFCCAA and YCCAA. Both of these authorities have advised EPA, however,
that they intend to make all changes necessary to receive interim
approval by October 1994. Based on this assurance, EPA is proposing in
the alternative to grant interim approval of the operating permit
programs submitted by BFCCAA and YCCAA provided that they make the
following changes by the time of final action on this rulemaking:
BFCCAA. (1) Repeal BFCCAA Reg. 1, Sec. 4.01, or revise it to
incorporate by reference the State operating permit regulation, ch.
173-401 WAC, adopted on October 4, 1993, as amended to incorporate any
changes made by Ecology at the time BFCCAA so amends BFCCAA Reg. 1,
Sec. 4.01.
(2) Repeal BFCCAA Reg. 1, Sec. 4.02, 4.04, 4.05, 4.06 and 4.07.
YCCAA. (1) Repeal YCCAA Reg. 1, Sec. 6.02, 6.04, 6.05, 6.06, 6.07
and 6.08.
(2) Revise YCCAA Reg. 1, Sec. 12.01 to provide that the identified
provisions of the Washington State Administrative Code are incorporated
by reference unless the YCCAA regulation is more stringent than the
State regulation.
(3) Revise YCCAA Reg. 1, Sec. 12.02 so that the identified
provisions of federal law are incorporated by reference regardless of
whether the federal regulations are inconsistent with YCCAA
regulations. Part 70 requires that all ``applicable requirements'' be
included in the permit (see 40 CFR 70.6(a)(1)). The term ``applicable
requirement'' is defined to include any standard or other requirement
under Sections 111 and 112 of the Act (see 40 CFR 70.2). YCCAA Reg. 1,
Sec. 12.02, however, would preclude YCCAA from including a Section 111
or 112 standard in an operating permit if the YCCAA had a regulation
that was less stringent than the federal standard. Therefore, YCCAA
does not have the authority to include all ``applicable requirements''
in a permit as required by part 70.
If BFCCAA or YCCAA fails to make these required changes by the time
EPA takes final action on this proposed rulemaking, EPA will disapprove
the operating permit program of such local air authority in the final
action. In the event of such a disapproval, Washington's Attorney
General has opined that Ecology's operating permit program would apply
as a matter of State law to sources located in the counties under the
jurisdiction of the local air authority. On that basis, EPA intends to
grant Ecology interim approval to administer the operating permit
program in the event of a disapproval of either local air authority
operating permit program within the jurisdiction of such local
authority. Therefore, no sanctions will result from a disapproval of
the operating permit program of either local air authority because all
sources in the State of Washington required to have an operating permit
under part 70 will be subject to either the State or a local operating
permit program that will have received interim approval.
b. Required changes for full approval. EPA will grant BFCCAA and
YCCAA interim approval of their operating permit programs provided they
make the changes required in paragraph (a) above. If they receive
interim approval, these local air authorities must make the following
additional changes to receive full approval:10
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\1\0All changes required for Ecology to receive full approval
must be made before BFCCAA or YCCAA may receive full approval. In
addition, in order to receive full approval, BFCCAA and YCCAA must
make such changes to their regulations as are necessary under
applicable State and local law to incorporate into their respective
regulations all required changes to Ecology's operating permit
program.
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BFCCAA. No additional changes are necessary for the BFCCAA
operating permit program to receive full approval other than those that
may be necessary under applicable State and local law to incorporate
into BFCCAA's regulations all changes to the State operating permit
program required for full approval.
YCCAA. Revise YCCAA Reg. I, Sec. 2.01, to delete the requirement
that violations be ``knowing.'' Part 70 prohibits a permitting
authority from including a mental state as an element of proof for
civil violations (see 40 CFR 70.11(a)(i)).
3. Effect of Interim Approval
Interim approval of these operating permit programs, which may not
be renewed, extends for a period of up to two years.
During the interim approval period, the State is protected from
sanctions for failure to have a program and EPA is not obligated to
promulgate a federal permits program in the State. Permits issued under
a program with interim approval have full standing with respect to part
70. In addition, the one-year deadline for submittal of permit
applications by subject sources and the three-year time period for
processing the initial permit applications begin upon interim approval.
III. Administrative Requirements
A. Request for Public Comments
The EPA is requesting comments on all aspects of this proposed
interim approval. Copies of the submittals of the State and local air
authorities and other information relied upon for the proposed interim
approval are contained in a docket maintained at the EPA Regional
Office. The docket is an organized and complete file of all the
information submitted to, or otherwise considered by, EPA in the
development of this proposed rulemaking. The principal purposes of the
docket are:
(1) to allow interested parties a means to identify and locate
documents so that they can effectively participate in the approval
process, and
(2) to serve as the record in case of judicial review. EPA will
consider any comments received by September 19, 1994.
B. Executive Order 12866
The Office of Management and Budget has exempted this regulatory
action from Executive Order 12866 review.
C. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. sections 600 et
seq., EPA must prepare a regulatory flexibility analysis
assessing the impact of any proposed or final rule on small
entities. 5 U.S.C. 603 and 604. Alternatively, EPA may certify that the
rule will not have a significant impact on a substantial number of
small entities. Small entities include small businesses, small not-for-
profit enterprises, and government entities with jurisdiction over
populations of less than 50,000.
Operating permit program approvals under section 502 of the Act do
not create any new requirements, but simply approve requirements that
the State is already imposing. Therefore, because the federal operating
permit program approval does not impose any new requirements, I certify
that it does not have a significant impact on any small entities
affected. Moreover, due to the nature of the federal-state relationship
under the Act, preparation of a regulatory flexibility analysis would
constitute federal inquiry into the economic reasonableness of State
action. The Act forbids EPA to base its actions concerning operating
permit programs on such grounds. Union Electric Co. v. U.S. E.P.A., 427
U.S. 246, 256-66 (S.Ct 1976); 42 U.S.C. 7410(a)(2).
List of Subjects in 40 CFR Part 70
Environmental protection, Administrative practice and procedure,
Air pollution control, Environmental protection, Intergovernmental
relations, Operating permits, and Reporting and recordkeeping
requirements.
Authority: 42 U.S.C. sections 7401-76719.
Dated: July 18, 1994.
Chuck Clarke,
Regional Administrator.
[FR Doc. 94-19774 Filed 8-17-94; 8:45 am]
BILLING CODE 6560-50-P