[Federal Register Volume 60, Number 35 (Wednesday, February 22, 1995)]
[Proposed Rules]
[Pages 9802-9810]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-4291]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 63

[WA22-1-6362; FRL-5157-4]


Approval and Promulgation of Implementation Plans, Washington; 
Approval of Section 112(l) Authority; Preconstruction and Operating 
Permits; Washington

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA invites public comment on its proposal to approve in part 
and disapprove in part, numerous revisions to the State of Washington 
[[Page 9803]] Implementation Plan submitted to EPA by the Director of 
the Washington Department of Ecology (WDOE) on March 8, 1994. The 
revisions were submitted in accordance with the requirements of section 
110 and Part D of the Clean Air Act (hereinafter the Act). EPA is also 
proposing to take no action on a number of provisions which are 
unrelated to the purposes of the implementation plan. EPA also invites 
public comment on its proposal to approve certain WDOE rules, and 
certain rules of the Puget Sound Air Pollution Control Agency (PSAPCA) 
and Southwest Air Pollution Control Authority (SWAPCA), submitted to 
EPA by the Director of WDOE on September 29, 1994, under the authority 
of section 112(l) of the Act in order to recognize conditions and 
limitations established pursuant to these rules as Federally 
enforceable.

DATES: Comments must be postmarked on or before March 24, 1995.

ADDRESSES: Written comments should be addressed to: David Bray, Permits 
Programs Manager, EPA, Air & Radiation Branch (AT-082), 1200 Sixth 
Avenue, Seattle, Washington 98101.
    Copies of the State's request and other information supporting this 
proposed action are available for inspection during normal business 
hours at the following locations: EPA, Air & Radiation Branch (AT-082), 
1200 Sixth Avenue, Seattle, Washington 98101, and State of Washington, 
Department of Ecology, 4550 Third Avenue SE, Lacey, Washington 98504.

FOR FURTHER INFORMATION CONTACT: David C. Bray, Permit Programs 
Manager, EPA, Air & Radiation Branch (AT-082), Seattle, Washington 
98101, (206) 553-4253.

SUPPLEMENTARY INFORMATION:

I. Background

    On November 15, 1990, Congress amended the Clean Air Act to 
require, among other things, revisions to state implementation plans 
(SIPs) to attain and maintain the National Ambient Air Quality 
Standards (NAAQS) in areas which violate those standards (nonattainment 
areas). Under the provisions of the Act, revisions to title I, part D 
(nonattainment area) new source review (NSR) rules were required to be 
submitted by June 30, 1992 for PM-10 nonattainment areas, by November 
15, 1992 for most ozone and carbon monoxide nonattainment areas, and by 
November 15, 1993 for the remainder of the ozone and carbon monoxide 
nonattainment areas. The Washington Department of Ecology (WDOE) 
amended its part D NSR rules on August 20, 1993 and submitted them to 
EPA on March 8, 1994 as a revision to the Washington SIP.
    The Clean Air Act Amendments of 1990 also established a new title V 
which requires States to develop operating permit programs for most 
stationary sources. While title V operating permit programs are not 
intended to be part of the SIP, many provisions of the SIP will 
interact closely with the title V operating permit program. As such, 
most States will be revising provisions of their SIPs to facilitate and 
improve the relationship between their SIP and their title V operating 
permit program. The WDOE amended several provisions of its current 
rules for air pollution sources and submitted them to EPA on March 8, 
1994 as a revision to the Washington SIP.
    Section 112(l) of the Act also enables the EPA to approve State air 
toxics rules or programs for the implementation and enforcement of 
emission standards and other requirements for hazardous air pollutants. 
Approval is granted by the EPA if the Agency finds that: (1) The State 
rule or program is ``no less stringent'' than the corresponding Federal 
program or rule; (2) the State program is supported by adequate 
authority and resources; (3) the schedule for implementation and 
compliance of emission standards and other requirements is sufficiently 
expeditious; and (4) the rules are otherwise in compliance with Federal 
guidance.
    On September 29, 1994, the Director of the WDOE submitted an 
official application to obtain approval for title V permitting 
authorities (with the exception of PSAPCA and SWAPCA) in the State of 
Washington to implement and enforce the statewide rules for ``Controls 
for New Sources of Toxic Air Pollutants'' (WAC 173-460) as an interim 
program to implement section 112(g) of the Act. The Director of the 
WDOE also submitted an official application on behalf of the PSAPCA and 
SWAPCA to obtain approval for those local agencies to implement and 
enforce their own rules (portions of PSAPCA Regulations I and III and 
SWAPCA Regulation 460) for new sources of toxic air pollutants.

II. Discussion of SIP Submittal

A. Description of SIP Submittal

    On March 8, 1994, the Director of the WDOE submitted all of Chapter 
173-400 WAC ``General Regulations for Air Pollution Sources'' (with the 
exception of WAC 173-400-114) as amended on August 20, 1993, as a 
revision to the Washington SIP. The amended rules include changes to 
the following sections: WAC 173-400-030 ``Definitions;'' WAC 173-400-
040 ``General standards for maximum emissions;'' WAC 173-400-100 
``Registration;'' WAC 173-400-105 ``Records, monitoring, and 
reporting;'' WAC 173-400-110 ``New source review (NSR);'' WAC 173-400-
120 ``Bubble rules;'' WAC 173-400-131 Issuance of emission reduction 
credits;'' WAC 173-400-136 ``Use of emission reduction credits;'' WAC 
173-400-141 ``Prevention of significant deterioration (PSD);'' WAC 173-
400-171 ``Public involvement;'' WAC 173-400-180 ``Variance;'' WAC 173-
400-230 ``Regulatory actions;'' and WAC 173-400-250 ``Appeals.'' The 
amended rules include the following new sections which are revised and 
recodified provisions from the previous rules: WAC 173-400-112 
``Requirements for new sources in nonattainment areas;'' and WAC 173-
400-113 ``Requirements for new sources in attainment or unclassifiable 
areas.'' Finally, the amended rules also include the following entirely 
new sections: WAC 173-400-081 ``Startup and shutdown;'' WAC 173-400-091 
``Voluntary limits on emissions;'' and WAC 173-400-107 ``Excess 
emissions.''
    With the exceptions discussed in Section II.C. and II.D. below, EPA 
is proposing to approve the submitted version of Chapter 173-400 WAC as 
a revision to the Washington SIP. Note that those provisions of WAC 
173-400 which were not revised on August 20, 1993 and are not discussed 
in Sections II.B., II.C., and II.D., below were previously approved by 
EPA on January 15, 1993 (58 FR 4578).

B. Discussion of Proposed Approvals

1. New Source Review
    The existing provisions related to new source review (NSR) were 
extensively revised to meet the new requirements of Title I, Part D of 
the Act as set forth in the ``State Implementation Plans: General 
Preamble for the Implementation of Title I of the Clean Air Act 
Amendments of 1990'' (57 FR 13498, April 16, 1992) and to make the WDOE 
rules more consistent with EPA's regulations for new source review 
programs in 40 CFR part 51, subpart I Review of New Sources and 
Modifications. Specifically:
    a. The definitions of the following terms were revised to be 
consistent with EPA's definitions: ``actual emissions'' (WAC 173-400-
030(1)), ``allowable emissions'' (WAC 173-400-030(5)), ``best available 
control technology [[Page 9804]] (BACT)'' (WAC 173-400-030(9)), ``Class 
I area'' (WAC 173-400-030(13)), ``emission standard and emission 
limitation'' (WAC 173-400-030(22)), ``major modification'' (WAC 173-
400-030(39)), ``net emission increase'' (WAC 173-400-030(46)), ``new 
source'' (WAC 173-400-030(47)), ``significant'' (WAC 173-400-030(67)), 
``source'' (WAC 173-400-030(69)), and ``volatile organic compound 
(VOC)'' (WAC 173-400-030(81)). EPA finds that these revised definitions 
are consistent with the requirements of 40 CFR Part 51, Subpart I, and 
therefore proposes to approve them as revisions to the Washington SIP.
    b. New definitions of the following terms were added to be 
consistent with EPA's regulations: ``federal land manager'' (WAC 173-
400-030(28)), ``mandatory Class I federal area'' (WAC 173-400-030(38)), 
``major stationary source'' (WAC 173-400-030(40)), ``modification'' 
(WAC 173-400-030(43)), ``order'' (WAC 173-400-030(53)), ``order of 
approval'' (WAC 173-400-030(54)), and ``stationary source'' (WAC 173-
400-030(74)). EPA finds that these new definitions are consistent with 
the requirements of 40 CFR part 51, subpart I, and therefore proposes 
to approve them as revisions to the Washington SIP.
    c. WAC 173-400-110 ``New Source Review (NSR)'' was revised to 
clarify the applicability of the NSR rule and the procedures for 
submittal of applications, making completeness determinations and final 
determinations, and appeals of orders of approval. The section was also 
revised by revoking provisions and replacing them with two new sections 
as described below. EPA finds that this revised section is consistent 
with the requirements of 40 CFR part 51, subpart I, and therefore 
proposes to approve it as a revision to the Washington SIP.
    d. A new section WAC 173-400-112 ``Requirements for new sources in 
nonattainment areas'' was added which specifies the requirements for 
new and modified major and minor stationary sources proposing to locate 
in designated nonattainment areas. New and modified minor stationary 
sources must comply with all applicable requirements, utilize the best 
available control technology (BACT) for all air pollutants, not violate 
the requirements for reasonable further progress established in the SIP 
and comply with the State's air toxics requirements which EPA is today 
proposing to approve pursuant to section 112(l) of the Act (see below). 
New and modified major sources must also comply with all applicable 
requirements, meet the lowest achievable emission rate (LAER) for the 
nonattainment air pollutant and BACT for all other air pollutants, 
comply with the requirements for reasonable further progress by 
providing adequate offsetting emission reductions from existing sources 
in the nonattainment area, demonstrate that all other major sources 
owned or operated in the State of Washington are in compliance (or on a 
compliance schedule) with applicable requirements, demonstrate through 
an analysis of alternatives that the benefits of the project 
significantly outweigh the costs imposed as a result of its location in 
the nonattainment area, comply with the requirements for prevention of 
significant deterioration (PSD) if applicable, comply with the State's 
air toxics requirements, and comply with the visibility protection 
requirements for mandatory Federal Class I areas.
    Section 189(e) of the Act requires part D NSR programs for 
PM10 nonattainment areas to treat PM10 precursor emissions in 
the same manner as PM10 emissions unless the Administrator has 
determined that PM10 precursors do not significantly contribute to 
violations of the PM10 NAAQS. However, WAC 173-400-112 does not 
address PM10 precursors nor require them to be treated in the same 
manner as PM10 emissions. The Administrator has previously made a 
determination that PM10 precursors do not significantly contribute 
to PM10 violations in the Thurston County, and Seattle, Tacoma, 
and Kent PM10 nonattainment areas (see 58 FR 40056 (July 27, 1993) 
and 59 FR 44324 (August 29, 1994)). The submitted control strategies 
for the Wallula, Spokane, and Yakima PM10 nonattainment areas 
contain sufficient information on the relative contribution of 
PM10 precursors to the nonattainment problem to enable the 
Administrator to determine at this time that PM10 precursors do 
not significantly contribute to violations of the PM10 NAAQS in 
those three areas. Based on the Administrator's determinations 
regarding PM10 precursors in the three remaining PM10 
nonattainment areas, EPA finds this new section to be consistent with 
the requirements of 40 CFR part 51, subpart I, and title I, part D of 
the Act, as set forth in ``State Implementation Plans: General Preamble 
for the Implementation of title I of the Clean Air Act Amendments of 
1990'' (57 FR 13498 (April 16, 1992)) and therefore proposes to approve 
it as a revision to the Washington SIP.
    e. A new section WAC 173-400-113 ``Requirements for new sources in 
attainment or nonclassifiable areas'' was added which specifies the 
requirements for new and modified major and minor stationary sources 
located in attainment areas. New and modified minor stationary sources 
must comply with all applicable requirements, utilize the best 
available control technology (BACT) for all air pollutants, not delay 
the attainment date for any nonattainment area nor cause or contribute 
to a violation of any ambient air quality standard, and comply with the 
State's air toxics requirements. New and modified major stationary 
sources must comply with all applicable requirements, utilize the best 
available control technology (BACT) for all air pollutants, not delay 
the attainment date for any nonattainment area nor cause or contribute 
to a violation of any ambient air quality standard, comply with the 
requirements for PSD if applicable, comply with the State's air toxics 
requirements, and not cause an adverse impact on visibility. EPA finds 
that this new section is consistent with the requirements of 40 CFR 
part 51, subpart I, and therefore proposes to approve it as a revision 
to the Washington SIP.
2. Startup and Shutdown
    The new section on ``startup and shutdown'' (WAC 173-400-081) 
establishes a requirement that State and local air pollution control 
authorities consider any physical constraints on the ability of a 
source to comply with a standard whenever an authority promulgates a 
technology-based emission standard or makes a control technology 
determination. Where the authority determines that the source is not 
capable of achieving continuous compliance with a standard during 
startup or shutdown, the authority shall establish appropriate 
limitations to regulate the performance of the source during startup or 
shutdown conditions. The allowable emissions during startup or shutdown 
must be accounted for in any demonstration of attainment or maintenance 
of ambient air quality requirements. In addition, if such limitations 
would allow emissions during periods of startup or shutdown which 
exceed those allowed for under the current EPA-approved SIP, such 
limitations shall not take effect until approved by EPA as a revision 
to the SIP. EPA finds this section to be consistent with EPA 
requirements and proposes to approve it as a revision to the Washington 
SIP.
3. Excess Emissions
    The new section on ``excess emissions'' (WAC 173-400-107) 
establishes requirements for reporting periods of excess emissions and 
the procedures and criteria for determining, [[Page 9805]] in the 
context of an enforcement action, when such excess emissions are 
unavoidable and could therefore be excused and not subject to penalty. 
The section sets forth separate criteria for periods of excess 
emissions resulting from startup or shutdown, scheduled maintenance, 
and upsets. EPA finds this section to be consistent with its 
requirements for SIP excess emissions rules (February 15, 1983 
memorandum entitled ``Policy on Excess Emissions During Startup, 
Shutdown, Maintenance, and Malfunctions'' from Kathleen M. Bennett, 
Assistant Administrator for Air, Noise and Radiation to Regional 
Administrators, Regions 1-X) and therefore proposes to approve it as a 
revision to the Washington SIP. Note that this new section replaces the 
provisions for excess emissions which were formerly contained in WAC 
173-400-105(5) and EPA also proposes to approve the repeal of those 
provisions.
4. Voluntary Limits on Emissions
    The new section for voluntary limits on emissions (WAC 173-400-091) 
provides a mechanism for the owner or operator of a source to apply 
for, and obtain, enforceable conditions that limit the source's 
potential to emit. Such limitations would be contained in a 
``regulatory order'' issued by the WDOE or a local air authority, after 
public notice and an opportunity for comment, and would include 
monitoring, recordkeeping and reporting requirements sufficient to 
ensure that the source complies with the limitations.
    On June 28, 1989 (54 FR 27274), EPA published criteria for 
approving and incorporating into the SIP regulatory programs for the 
issuance of Federally enforceable State operating permits. Permits 
issued pursuant to an operating permit program approved into the SIP as 
meeting these criteria may be considered Federally enforceable. The EPA 
has encouraged States to develop such programs in conjunction with 
title V operating permits programs to enable sources to limit their 
potential to emit to below the title V applicability thresholds. (See 
the guidance document entitled, ``Limitation of Potential to Emit With 
Respect to Title V Applicability Thresholds,'' dated September 18, 
1992, from John Calcagni, Director, Air Quality Management Division, 
Office of Air Quality Planning and Standards (OAQPS), Office of Air and 
Radiation, U.S. EPA.) On November 3, 1993, the EPA announced in a 
guidance document entitled, ``Approaches to Creating Federally 
Enforceable Emissions Limits,'' signed by John S. Seitz, Director, 
OAQPS, that this mechanism could be extended to create Federally 
enforceable limits for emissions of hazardous air pollutants (HAP) if 
the program were approved pursuant to section 112(l) of the Act.
    The June 28, 1989 Federal Register notice establishes five criteria 
which must be met in order for EPA to approve a State operating permit 
program into the SIP: (1) The program must be submitted to and approved 
by the EPA; (2) the program must impose a legal obligation on the 
operating permit holders to comply with the terms and conditions of the 
permit, and permits that do not conform with the June 28, 1989 criteria 
or the EPA's underlying regulations shall be deemed not Federally 
enforceable; (3) any permit issued under the program must contain terms 
and conditions that are at least a stringent as any requirements 
contained in the SIP, enforceable under the SIP, or any section 112 or 
other CAA requirement, and may not allow for the waiver of any CAA 
requirement; (4) any permit issued under the program must contain 
conditions that are permanent, quantifiable, and enforceable as a 
practical matter; and (5) any permit that is intended to be Federally 
enforceable must be issued subject to public participation and must be 
provided to the EPA in proposed form on a timely basis.
    EPA finds that WAC 173-400-091 meets the requirements for Federally 
enforceable State operating permit programs as set forth in the June 
28, 1989 Federal Register (54 FR 27274) and proposes to approve it as a 
revision to the Washington SIP. Furthermore, EPA proposes that, after 
final approval to this section, ``regulatory orders'' issued pursuant 
to the EPA-approved WAC 173-400-091, and terms and conditions contained 
therein, would be enforceable by the EPA and by citizens under section 
304 of the Act regardless of whether such orders were issued prior to 
EPA approval of this section. However, such orders would have to have 
been issued after the effective date of WAC 173-400-091 (i.e., 
September 20, 1993) in accordance with all of the provisions set forth 
in that section. Sources could, thereafter, rely on ``regulatory 
orders'' issued pursuant to this section as a means to limit their 
potential to emit criteria pollutants and the pollutants regulated 
under the PSD provisions of the SIP in order to avoid requirements 
which would otherwise apply to ``major stationary sources.'' EPA 
requests comment on the appropriateness of making Federally 
enforceable, as of the date of EPA approval, the terms and conditions 
of an order that was issued prior to EPA's approval of a State or local 
rule, provided the order itself complied with all of the requirements 
of the EPA-approved rule.
5. Miscellaneous Changes
    The remaining changes to WAC 173-400-030 ``Definitions;'' and the 
changes to WAC 173-400-040 ``General standards for maximum emissions;'' 
WAC 173-400-100 ``Registration;'' WAC 173-400-105 ``Records, 
monitoring, and reporting;'' WAC 173-400-171 ``Public involvement;'' `` 
WAC 173-400-230 ``Regulatory actions;'' and WAC 173-400-250 ``Appeals'' 
are primarily administrative in nature to conform those sections to 
current State statutes and to other provisions of WAC 173-400. EPA 
finds these changes to be consistent with EPA's requirements and 
proposes to approve the rules as revised.

C. Discussion of Proposed Disapprovals

    On January 15, 1993 (58 FR 4578), EPA disapproved numerous 
provisions of Chapter 173-400 WAC. These provisions were resubmitted as 
part of the March 8, 1994 submittal without the necessary changes to 
make them approvable. EPA is therefore proposing to again disapprove 
the following provisions. A complete discussion of the deficiencies and 
the reasons for disapproval can be found in the September 28, 1992 
Notice of Proposed Rulemaking (57 FR 44530).
    EPA is proposing to disapprove WAC 173-400-040(1) (c) and (d) which 
allow for the establishment of alternative opacity limits. EPA is 
proposing to disapprove the second paragraph of WAC 173-400-040(6) 
which provides an exception to the sulfur dioxide emission limitation. 
EPA is proposing to disapprove the exception provision in WAC 173-400-
050(3) which allows for the establishment of an alternative oxygen 
correction factor for combustion and incineration sources. EPA is 
proposing to disapprove WAC 173-400-180 Variance which allows the WDOE 
to grant a variance to the requirements governing the quality, nature, 
duration, or extent of discharges of air contaminants. EPA is proposing 
to disapprove WAC 173-400-120 Bubble Rules, WAC 173-400-131 Issuance of 
Emission Reduction Credits, and WAC 173-400-136 Use of Emission 
Reduction Credits as these regulations do not comply with the 
requirements of EPA's Final Emissions Trading Policy Statement (51 FR 
43814, December 4, 1986).
    EPA is proposing to disapprove WAC 173-400-141 Prevention of 
Significant Deterioration (PSD) as it does not meet [[Page 9806]] the 
requirements of 40 CFR 51.166. WDOE has adopted, by reference, EPA's 
PSD regulations (40 CFR 52.21) as in effect on March 3, 1993. However, 
significant changes to EPA's regulations became effective on July 20, 
1993, August 19, 1993 and June 3, 1994. Note that the PSD provisions of 
the Washington SIP are currently disapproved and EPA's PSD regulations 
have been promulgated into the Washington SIP (see 40 CFR 52.2497). 
Until WAC 173-400-141 is revised to meet current EPA requirements and 
is approved by EPA, WDOE will continue to issue PSD permits under a 
partial delegation of the EPA PSD permit program.

D. Provisions Unrelated to the SIP

    EPA is proposing to take no action on WAC 173-400-040(2) Fallout; 
WAC 173-400-040(4) Odors; WAC 173-400-070(7) Sulfuric Acid Plants; WAC 
173-400-075 Emission Standards for Sources Emitting Hazardous Air 
Pollutants; and WAC 173-400-115 Standards of Performance for New 
Sources, as these provisions are not related to the criteria pollutants 
regulated under the SIP.

III. Discussion of Section 112(l) Submittal

A. Description of Submittal

    On September 29, 1994, the Director of the WDOE submitted WAC 173-
460 ``Controls for New Sources of Toxic Air Pollutants,'' SWAPCA 
Regulation 460 ``Controls for New Sources of Toxic Air Pollutants,'' 
and PSAPCA Regulation I, Article 6 ``New Source Review'' and Regulation 
III, Article 2 ``Review of Toxic Air Contaminant Sources'' for approval 
under section 112(l) of the Act. These provisions establish 
requirements for preconstruction permits for new and modified sources 
of HAP.

B. Discussion of Proposed Approval

1. Permits to Construct for New and Modified Sources of Hazardous Air 
Pollutants
    a. WAC 173-460 ``Controls for New Sources of Toxic Air Pollutants'' 
establishes the State of Washington's procedures for regulating new and 
modified stationary sources of toxic air pollutants. It is a 
comprehensive regulation which covers more pollutants than the 189 HAP 
listed in section 112(b) of the Act. In addition, it applies to most 
stationary sources of toxic air pollutants and not just major 
stationary sources. Finally, it requires both the application of the 
best available control technology for toxics (T-BACT) and a 
demonstration of the protection of human health and safety.
    WAC 173-460-010 ``Purpose'' sets forth the purpose of this 
regulation and the policy of the State of Washington in regulating 
toxic air pollutants. WAC 173-460-020 ``Definitions'' incorporates all 
of the definitions from WAC 173-400 ``General Regulations for Air 
Pollution Sources'' and adds several new definitions specific to the 
control of toxic air pollutants. WAC 173-460-030 ``Requirements, 
applicability, and exemptions'' identifies the source categories 
subject to WAC 173-460 and certain general and specific exemptions from 
the regulation.
    WAC 173-460-040 ``New source review'' supplements the new source 
review requirements of WAC 173-400-110 by adding additional 
requirements for toxic air pollutant sources. Specifically, it requires 
any new or modified source subject to WAC 173-460 to submit a notice of 
construction application and obtain a regulatory order approving the 
notice of construction prior to commencing construction. This section 
requires any new or modified stationary source to comply with all 
applicable requirements, utilize T-BACT, and demonstrate that toxic air 
pollutant emissions from the source are sufficiently low as to protect 
human health and safety from potential carcinogenic and/or other toxic 
effects. Source categories for which WDOE has established T-BACT by 
rule are exempted from the requirement to demonstrate that their 
emissions protect human health and safety. This section also specifies 
the process for making preliminary determinations, including public 
notice and opportunity for public comment, making final determinations, 
and appealing the permitting authority's decision.
    WAC 173-460-050 ``Requirement to quantify emissions'' requires new 
sources to quantify emissions sufficient to perform the analyses 
required by WAC 173-460 and sets forth the procedures for making 
appropriate emissions calculations. WAC 173-460-060 ``Control 
technology requirements'' establishes the requirement for new and 
modified sources of toxic air pollutants to utilize T-BACT and 
establishes T-BACT requirements by rule for perchloroethylene dry 
cleaners, petroleum solvent dry cleaning systems, chromic acid plating 
and anodizing, solvent metal cleaners, and abrasive blasting.
    WAC 173-460-070 ``Ambient impact requirement'' requires the owner 
or operator of a new or modified source of toxic air pollutants to 
demonstrate that emissions from the source are sufficiently low as to 
protect human health and safety from potential carcinogenic and/or 
other toxic effects. Compliance with this requirement must be 
demonstrated using the procedures set forth in WAC 173-460. WAC 173-
460-080 ``Demonstrating ambient impact compliance'' requires the owner 
or operator of a new or modified air toxics source to complete an 
analysis which demonstrates compliance with the acceptable source 
impact levels (ASIL) established in WAC 173-460. The analysis must 
utilize dispersion modeling techniques in accordance with EPA 
guidelines, unless the source qualifies for using specified small 
quantity emission rate tables.
    WAC 173-460-090 ``Second tier analysis'' provides an alternative 
approach for demonstrating acceptable impacts if the owner or operator 
of a proposed new source or modification could not demonstrate 
compliance with the acceptable source impact levels using the 
procedures specified in WAC 173-460-080. This section allows the owner 
or operator of a new or modified source to petition WDOE to perform a 
second tier analysis evaluation to determine a means of compliance with 
WAC 173-460-070 and -080 by establishing allowable emissions for the 
source. A second tier analysis may be requested when a source wishes to 
more accurately characterize risks, to justify risk greater than 
acceptable source impact levels, or to otherwise modify assumptions to 
more accurately represent risks. The WDOE may approve emissions of air 
toxics from a source where ambient concentrations would exceed 
acceptable source impact levels only if it determines that T-BACT is 
utilized and that emissions of certain air toxics are not likely to 
result in an increased cancer risk of more than one in one-hundred 
thousand. If the WDOE approves the second tier analysis, the notice of 
construction approval, following public notice and opportunity for 
comment, shall specify allowable emissions consistent with WDOE's 
determination and include all requirements necessary to assure that 
conditions of WAC 173-460 and WAC 173-400 are met.
    WAC 173-460-100 ``Request for risk management decision'' provides 
an alternative approach for sources that emit certain toxic air 
pollutants that are likely to result in an increased cancer risk of 
more than one in one-hundred thousand. The owner or operator of such a 
source may request that WDOE make a risk management decision which 
would allow such greater risk. To receive such approval, the owner or 
[[Page 9807]] operator of such source must propose allowable emission 
limits for the source that represent all known available reasonable 
control technology, apply all known available air toxic pollution 
prevention methods, and demonstrate that the proposal will result in a 
greater benefit to the environment as a whole. The source may also 
propose measures that would reduce community exposure to comparable 
toxic air pollutants. WDOE's decision on any request for a risk 
management decision will follow a public notice and opportunity for 
public comment, including a public hearing, and appropriate conditions 
on emission controls, pollution prevention, or other measures, shall be 
included in the approval of the notice of construction.
    WAC 173-460-110 ``Acceptable source impact levels'' establishes the 
process that the WDOE uses to establish the acceptable source impact 
levels in this regulation. WAC 173-460-120 ``Scientific review and 
amendment of acceptable source impact levels and lists'' establishes an 
ongoing process for the scientific review of information on toxic air 
pollutants and acceptable source impact levels. WAC 173-460-130 
``Fees'' authorizes the WDOE or local air authority to charge fees for 
the review of notices of construction. WAC 173-460-140 ``Remedies'' 
establishes the civil and criminal enforcement authorities for 
violations of WAC 173-460. Finally, WAC 173-460-150 ``Class A toxic air 
pollutants: Known, probable and potential human carcinogens and 
acceptable source impact levels'' and WAC 173-460-160 ``Class B toxic 
air pollutants and acceptable source impact levels'' list the 
acceptable source impact levels for the toxic air pollutants regulated 
by WAC 173-460. Note that these levels are criteria used in a permit 
review process and are not standards which would be enforceable against 
sources by either the State or EPA.
    EPA is proposing to approve WAC 173-460 under section 112(l) of the 
Act in order to recognize regulatory orders approving notices of 
construction as Federally enforceable. EPA is also proposing to approve 
the provisions of WAC 173-400 that are used to implement the 
requirements of WAC 173-460 (specifically, WAC 173-400-110, -112, -113, 
and -171) under section 112(l) of the Act. If approved, permitting 
authorities would be able to utilize regulatory orders issued pursuant 
to WAC 173-460 to establish Federally enforceable limits on potential 
to emit for new and modified stationary sources of HAP and to make any 
case-by-case MACT determinations required under section 112(g) of the 
Act.
    The EPA believes it has authority under section 112(l) to approve 
State preconstruction review programs for HAP directly under section 
112(l). The EPA is therefore proposing approval of WAC 173-460 now so 
that permitting authorities in Washington may begin to issue Federally 
enforceable regulatory orders as soon as possible.
    EPA is aware that WAC 173-460 was not designed specifically to 
implement section 112(g) of the Act. Furthermore, EPA has acknowledged 
that States may encounter difficulties implementing section 112(g) 
prior to promulgation of final EPA regulations (see June 28, 1994 
memorandum entitled, ``Guidance for Initial Implementation of Section 
112(g),'' signed by John Seitz, Director of the Office of Air Quality 
Planning and Standards). However, EPA believes that WAC 173-460 can 
serve as a procedural vehicle to make Federally enforceable any case-
by-case MACT determinations required by section 112(g) during the 
transition period between title V approval in Washington and EPA 
approval of WDOE regulations to implement EPA's final section 112(g) 
regulations. EPA believes WAC 173-460 will be adequate for this 
transition period because it applies to any new source of HAP and any 
modification to an existing source of HAP. As such, any major source 
which would be subject to section 112(g) of the Act would be required 
by WAC 173-460 to obtain a regulatory order containing a T-BACT 
determination. Furthermore, WAC 173-460 allows permitting authorities 
to select control measures that would meet MACT, as defined in section 
112 of the Act, and after EPA approval, to incorporate these measures 
into a Federally enforceable regulatory order.
    b. SWAPCA Regulation 460 ``Controls for New Sources of Toxic Air 
Pollutants'' adopts WAC 173-460 by reference as a local regulation. As 
discussed in Section III.B.1. above, this WAC 173-460 meets all of 
EPA's requirements for a permit to construct program to establish 
Federally enforceable limitations on new and modified stationary 
sources of HAP. EPA is therefore proposing to approve SWAPCA Regulation 
460 under the authority of section 112(l) of the Act. Note that EPA is 
proposing to approve WAC 173-460 which is applicable statewide and, by 
State law, remains in effect in all areas of the State regardless of 
any local agency regulations. If SWAPCA Regulation 460 is revised or 
revoked, SWAPCA is approved to implement WAC 173-460 as the new source 
review program for HAP in SWAPCA's jurisdiction until such time as EPA 
approves the revision or revocation of SWAPCA Regulation 460.
    c. PSAPCA Regulation I, Article 6 ``New Source Review'' and 
Regulation III, Article 2 ``Review of Toxic Air Contaminant Sources'' 
contain requirements for the construction and modification of 
stationary sources of HAP. Regulation I, Article 6 establishes a 
comprehensive new source review program that sets forth the process for 
submitting a ``Notice of Construction and Application for Approval'' 
and granting an ``Order of Approval'' or ``Order to Prevent 
Construction.'' It applies to new and modified sources of any air 
contaminant and includes requirements for the content of applications, 
payment of ``Notice of Construction'' review fees, and requirements for 
public notice and comment. Furthermore, Section 6.07(c)(3) requires the 
utilization of the best available control technology (BACT) for all air 
contaminants emitted by new and modified stationary sources.
    Regulation III, Article 2 establishes additional requirements for 
new and modified sources of toxic air contaminants and applies to all 
sources required to submit a ``notice of construction and application 
for approval'' under Regulation I, Article 6 except for certain source 
categories for which PSAPCA has established T-BACT by rule. Section 
2.01 ``Applicability'' states that Article 2 applies to all sources of 
toxic air contaminants except for the following source categories for 
which PSAPCA has established T-BACT by rule: asbestos removal 
operations, chromic acid plating and anodizing tanks, solvent metal 
cleaners, perchloroethylene dry cleaning systems, petroleum solvent dry 
cleaning systems, gasoline storage and dispensing operations, graphic 
arts systems, can and paper coating operations, motor vehicle and 
mobile equipment coating operations, polyester/vinylester/gelcoat/resin 
operations, coatings and ink manufacturing, and ethylene oxide 
sterilizers and aerators. Note that sources exempt from the additional 
requirements of this section are not exempted from the requirement of 
Regulation I, Article 6 ``New Source Review.'' Section 2.02 ``National 
Emission Standards for Hazardous Air Pollutants'' requires all sources 
subject to Article 2 to comply with any applicable provision of 40 CFR 
part 61. Section 2.03 ``New or Altered Toxic Air Contaminant Sources'' 
requires that no ``Notice of Construction and Application for 
Approval'' shall be issued under Regulation I, Article 6 for a new or 
modified source subject to [[Page 9808]] Article 2 unless the source 
owner or operator demonstrates that the toxic air contaminant emissions 
from the source will not result in the exceedence of any Acceptable 
Source Impact Level (ASIL) contained in Appendix A of Regulation III 
and does not otherwise cause an air pollution problem.
    These PSAPCA regulations have previously been approved as part of 
the Washington SIP for control of criteria pollutants. They also meet 
all of EPA's requirements for a permit to construct program to 
establish Federally enforceable limitations on new and modified 
stationary sources of HAP. Furthermore, the WDOE has certified that, 
pursuant to Washington State law, the PSAPCA regulations are at least 
as stringent as corresponding State regulations, in this case, WAC 173-
460 which EPA is also proposing to approve. EPA is therefore proposing 
to approve these PSAPCA regulations under the authority of section 
112(l) of the Act. Note that EPA is proposing to approve WAC 173-460 
which is applicable statewide and, by State law, remains in effect in 
all areas of the State regardless of any local agency regulations. If 
PSAPCA Regulation I, Article 6 or Regulation III, Article 2 is revised 
or revoked, PSAPCA is approved to implement WAC 173-460 as the new 
source review program for HAP in PSAPCA's jurisdiction until such time 
as EPA approves the revision or revocation of PSAPCA's regulations.
2. Voluntary Limits on Emissions
    The new section for voluntary limits on emissions (WAC 173-400-091) 
provides a mechanism for the owner or operator of a source to apply 
for, and obtain, enforceable conditions that limit the source's 
potential to emit. The provisions of this section are applicable, as a 
matter of State law, to any air contaminant and not just the criteria 
pollutants regulated under the EPA-approved Washington SIP. In addition 
to requesting approval into the SIP, WDOE has also requested approval 
of this section under section 112(l) of the Act for the purpose of 
creating Federally enforceable limitations on the potential to emit of 
HAP. Approval under section 112(l) is necessary because the proposed 
SIP approval discussed in Section II.B.4. above only extends to the 
control of criteria pollutants. Federally enforceable limits on 
criteria pollutants (i.e., VOC's or PM-10) may have the incidental 
effect of limiting certain HAP listed pursuant to section 112(b).1 
However, section 112 of the Act provides the underlying authority for 
controlling all HAP emissions.

    \1\ The EPA intends to issue guidance addressing the technical 
aspects of how these criteria pollutant limits may be recognized for 
purposes of limiting a source's potential to emit of HAP to below 
section 112 major source levels.
---------------------------------------------------------------------------

    The EPA believes that the five approval criteria for approving 
State operating permit programs into the SIP, as specified in the June 
28, 1989 Federal Register notice, are also appropriate for evaluating 
and approving State operating permit programs under section 112(l) of 
the Act. The November 3, 1993 guidance document entitled ``Approaches 
to Creating Federally Enforceable Emissions Limits,'' signed by John S. 
Seitz, Director, OAQPS, indicated that this mechanism could be extended 
to create Federally enforceable limits for emissions of HAP if the 
program were approved pursuant to section 112(l) of the Act. The June 
28, 1989 notice does not address HAP simply because it was written 
prior to the 1990 amendments to section 112, not because it establishes 
requirements unique to criteria pollutants. In addition to meeting the 
criteria in the June 28, 1989 notice, a State operating permit program 
that addresses HAP must meet the statutory criteria for approval under 
section 112(l)(5). Section 112(l) allows the EPA to approve a program 
only if it: (1) contains adequate authority to assure compliance with 
any section 112 standards or requirements; (2) is supported by adequate 
resources; (3) provides for an expeditious schedule for assuring 
compliance with section 112 requirements; and (4) is otherwise likely 
to satisfy the objectives of the Act. The EPA plans to codify the 
approval criteria for programs limiting potential to emit of HAP, such 
as State operating permit programs, through amendments to Subpart E of 
Part 63, the regulations promulgated to implement section 112(l) of the 
Act. (See 58 FR 62262, November 26, 1993.) The EPA currently 
anticipates that these regulatory criteria, as they apply to State 
operating permit programs, will mirror those set forth in the June 28, 
1989 Federal Register notice. The EPA currently anticipates that since 
State operating permit programs approved pursuant to section 112(l) 
prior to the planned Subpart E revisions will have been approved as 
meeting these criteria, further approval actions for those programs 
will not be necessary.
    The EPA believes it has authority under section 112(l) to approve 
programs to limit potential to emit of HAP directly under section 
112(l) prior to this revision to Subpart E. The EPA is therefore 
proposing approval of this section now so that permitting authorities 
in Washington may begin to issue Federally enforceable regulatory 
orders as soon as possible.
    As discussed in Section II.B.4. above, EPA believes that this 
section meets the approval criteria specified in the June 28, 1989 
Federal Register notice. Regarding the statutory criteria of section 
112(l)(5) referred to above, the EPA believes this section contains 
adequate authority to assure compliance with section 112 requirements 
because the third criterion of the June 28, 1989 notice is met, that 
is, because the program does not allow for the waiver of any section 
112 requirement. Sources that become minor through a permit issued 
pursuant to this program would still be required to meet section 112 
requirements applicable to non-major sources. Regarding the requirement 
for adequate resources, the EPA believes WDOE has demonstrated that it 
can provide for adequate resources to support the synthetic minor 
program. Permitting authorities currently cover sources not subject to 
title V under a ``registration'' program which assesses fees adequate 
to cover the costs of implementing and enforcing the terms of 
regulatory orders issued under this section. The EPA will monitor each 
permitting authority's implementation of this section to ensure that 
adequate resources are in fact available. The EPA also believes that 
this section provides for an expeditious schedule for assuring 
compliance with section 112 requirements. This program will be used 
allow a source to establish a voluntary limit on potential to emit to 
avoid being subject to a CAA requirement applicable on a particular 
date. Nothing in this section would allow a source to avoid or delay 
compliance with a CAA requirement if it fails to obtain an appropriate 
Federally enforceable limit by the relevant deadline. Finally, the EPA 
believes it is consistent with the intent of section 112 of the Act for 
States to provide a mechanism through which sources may avoid 
classification as a major source by obtaining a Federally enforceable 
limit on potential to emit.
    EPA therefore, proposes to approve WAC 173-400-091 under the 
authority of section 112(l) of the Act. Furthermore, EPA proposes that, 
after final approval to this section, ``regulatory orders'' issued 
pursuant to the EPA-approved WAC 173-400-091, and terms and conditions 
for HAP contained therein, would be enforceable by the EPA and by 
citizens under section 304 of the Act regardless of whether such orders 
were issued prior to EPA approval of this section. However, such orders 
would have to [[Page 9809]] have been issued after the effective date 
of WAC 173-400-091 (i.e., September 20, 1993) in accordance with all of 
the provisions set forth in that Section. Sources could, thereafter, 
rely on ``regulatory orders'' issued pursuant to this section as a 
means to limit their potential to emit of HAP in order to avoid 
requirements which would otherwise apply to a ``major stationary 
source'' of HAP. EPA requests comment on the appropriateness of making 
Federally enforceable the terms and conditions of an order that was 
issued prior to EPA's approval of a State or local rule, provided the 
order itself complied with all of the requirements of the EPA-approved 
rule.

IV. Summary of Action

    EPA is soliciting public comment on its proposed approval in part 
and disapproval in part of revisions to the State of Washington 
Implementation Plan. Specifically, EPA is proposing to approve:
    WAC 173-400 as in effect on September 20, 1993, except for the 
following sections: -040(1)(c) and (d); -040(2); -040(4); the second 
paragraph of -040(6); the exception provision in -050(3); -070(7); -
075; -115; -120; -131; -136; -141; and -180.
    EPA is proposing to disapprove the following:
    WAC 173-400-040(1)(c) and (d), the second paragraph of -040(6), the 
exception provision in -050(3), -120, -131, -136, -141, and -180.
    EPA is proposing to take no action on the following:
    WAC 173-400-040(2), -040(4), -070(7), -075, and -115.
    Note that WAC 173-400-114 was not submitted for inclusion in the 
Washington SIP.
    EPA is also soliciting public comment on its proposed approval of 
certain State and local agency regulations pursuant to the authority of 
section 112(l) of the Act. Specifically, EPA is proposing to approve 
the following:
    WAC 173-460 as in effect on February 14, 1994;
    WAC 173-400-091; -110; 112; 113; and 171 as in effect on September 
20, 1993;
    SWAPCA Regulation 460 as in effect on June 15, 1993; and
    PSAPCA Regulation I, Article 6 as in effect on September 17, 1993 
and
    Regulation III, Articles 1 and 2 as in effect on September 17, 
1993.
    Interested parties are invited to comment on all aspects of this 
proposed approval in part and disapproval in part. Comments should be 
submitted in triplicate, to the address listed in the front of this 
Notice. Public comments postmarked by March 24, 1995, will be 
considered in the final rulemaking action taken by EPA.

Administrative Review

    This action has been classified as a Table 2 SIP action by the 
Regional Administrator under the procedures published in the Federal 
Register on January 19, 1989 (54 FR 2214-2224), as revised by an 
October 4, 1993 memorandum from Michael H. Shapiro, Acting Assistant 
Administrator for Air and Radiation. The OMB has exempted Table 2 SIP 
actions from E.O. 12866 review.
    Under the Regulatory Flexibility Act, 5 U.S.C. 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.
    SIP approvals under section 110 and subchapter I, Part D of the CAA 
do not create any new requirements, but simply approve requirements 
that the State is already imposing. Similarly, approvals of State rules 
under section 112(l) do not create any new requirements. Therefore, 
because the Federal SIP approval and the section 112(l) approval do not 
impose any new requirements, I certify that they do not have a 
significant impact on any small entities affected. Moreover, due to the 
nature of the Federal-State relationship under the CAA, preparation of 
a regulatory flexibility analysis would constitute Federal inquiry into 
the economic reasonableness of State action. The CAA forbids EPA to 
base its actions concerning SIPs 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).
    EPA's disapproval of the State request under section 110 and 
subchapter I, part D of the CAA does not affect any existing 
requirements applicable to small entities. Any pre-existing Federal 
requirements remain in place after this disapproval. Federal 
disapproval of the State submittal does not affect its State 
enforceability. Moreover, EPA's disapproval of the submittal does not 
impose any new Federal requirements. Therefore, EPA certifies that this 
disapproval action does not have a significant impact on a substantial 
number of small entities because it does not impose any new Federal 
requirements.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any SIP or approval of any State rules pursuant to section 
112(l). Each request for revision to any SIP or approval under section 
112(l) shall be considered separately in light of specific technical, 
economic, and environmental factors and in relation to relevant 
statutory and regulatory requirements.
    Under Executive Order 12866 (58 FR 51735 (October 4, 1993)), the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines ``significant regulatory action'' as 
one that is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact or entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    It has been determined that the proposed approval of the State and 
local air toxics rules under section 112(l) is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to OMB review.

    Authority: 42 U.S.C. 7401-7671q.

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Hydrocarbons, Incorporation by reference, Intergovernmental relations, 
Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides, and Volatile organic 
compounds.

40 CFR Part 63

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Hazardous substances, Intergovernmental 
relations, [[Page 9810]] Reporting and recordkeeping requirements.

    Dated: February 9, 1995.
Chuck Clarke,
Regional Administrator.
[FR Doc. 95-4291 Filed 2-21-95; 8:45 am]
BILLING CODE 6560-50-P