[Federal Register Volume 60, Number 106 (Friday, June 2, 1995)]
[Rules and Regulations]
[Pages 28726-28729]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-13516]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[WA22-1-6362; FRL-5214-2]


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

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving in part 
and disapproving in part, numerous revisions to the State of Washington 
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 taking no action on 
a number of provisions which are unrelated to the purposes of the 
implementation plan. EPA is also approving certain WDOE rules 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.

EFFECTIVE DATE: This action will be effective on June 2, 1995.

ADDRESSES: Copies of the State's request and other information 
supporting today's 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
    Documents which are incorporated by reference are available for 
public inspection at the Air and Radiation Docket and Information 
Center, EPA, 401 M Street, SW, Washington, D.C. 20460, as well as the 
above addresses.

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

    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 WDOE also amended several other 
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. 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 the Puget Sound Air Pollution Control Agency (PSAPCA) 
and the Southwest Air Pollution Control Agency (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 as interim programs to implement section 112(g) of the Act.
    On February 22, 1995 (60 FR 9802), EPA proposed to approve in part 
and disapprove in part, numerous revisions to the State of Washington 
Implementation Plan. EPA proposed to take no action on a number of 
provisions which are unrelated to the purposes of the implementation 
plan. EPA also proposed to approve certain WDOE rules, and certain 
rules of the Puget Sound Air Pollution Control Agency (PSAPCA) and 
Southwest Air Pollution Control Authority (SWAPCA), 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.
    On May 8, 1995, WDOE officially withdrew its request for approval 
of the State and local agency rules submitted September 29, 1994 as an 
interim program for implementing section 112(g) of the Act. WDOE also 
withdrew two provisions of WAC 173-400 which were included in its March 
8, 1994 SIP submittal. [[Page 28727]] 

II. Response to Comments

    EPA received comments from Northwest Pulp & Paper Association, the 
American Forest & Paper Association, and the Washington Department of 
Ecology. With the exception of two comments from the WDOE supporting 
EPA's proposed approval of WAC 173-400-091, all of the comments 
pertained to rules which the WDOE has since withdrawn from its SIP and 
Section 112(l) submittal. Because the rules on which the adverse 
comments were submitted are no longer before EPA for consideration, the 
adverse comments are now moot.
III. This Action

    On February 22, 1995 (60 FR 9802), EPA proposed to approve in part, 
disapprove in part, and take no action in part, on numerous revisions 
to Chapter 173-400 WAC ``General Regulations for Air Pollution 
Sources.'' With the exception of the two provisions which were 
withdrawn by WDOE on May 8, 1995, EPA today is taking final action on 
the proposed approvals and disapprovals.
    Specifically, EPA is approving revisions to WAC 173-400-030 
``Definitions;'' WAC 173-400-040 ``General standards for maximum 
emissions'' (except for -040(1)(c) and (d); -040(2); -040(4); and the 
second paragraph of -040(6)); WAC 173-400-100 ``Registration;'' WAC 
173-400-105 ``Records, monitoring, and reporting;'' WAC 173-400-110 
``New source review (NSR);'' WAC 173-400-171 ``Public involvement;'' 
WAC 173-400-230 ``Regulatory actions;'' and WAC 173-400-250 
``Appeals;'' and the addition of WAC 173-400-081 ``Startup and 
shutdown;'' WAC 173-400-091 ``Voluntary limits on emissions;'' WAC 173-
400-107 ``Excess emissions;'' WAC 173-400-112 ``Requirements for new 
sources in nonattainment areas'' (except for -112(8)); and WAC 173-400-
113 ``Requirements for new sources in attainment or unclassifiable 
areas'' (except for -113(5)).
    EPA is disapproving WAC 173-400-040(1)(c) ``alternative time 
periods for opacity standards;'' WAC 173-400-040(1)(d) ``alternative 
opacity limits;'' the second paragraph of WAC 173-400-040(6) 
``exemption from sulfur dioxide emission limit;'' the exception 
provision in WAC 173-400-050(3) ``alternative oxygen correction 
factor;'' 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);'' and WAC 173-400-180 ``Variance.''
    EPA is taking 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.'' Note that WAC 173-400-112(8), WAC 173-400-113(5), and WAC 
173-400-114 were not submitted for inclusion in the Washington SIP. All 
other provisions of WAC 173-400 which are not mentioned above were 
previously approved by EPA on January 15, 1993 (58 FR 4578). See the 
February 22, 1995 Federal Register for a complete discussion of EPA's 
findings and rationale for its proposed approvals and disapprovals.
    As was proposed in the February 22, 1995 Federal Register, after 
final EPA approval of WAC 173-400-091, ``regulatory orders'' issued 
pursuant to that rule, and terms and conditions contained therein, will 
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 
that 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, after the effective date of this approval, rely on 
``regulatory orders'' issued pursuant to WAC 173-400-091 as a means to 
limit their potential to emit criteria pollutants, pollutants regulated 
under the PSD provisions of the SIP, and hazardous air pollutants 
listed in section 112(b) of the Act in order to avoid requirements 
which would otherwise apply to ``major stationary sources.''
    After the effective date of this approval, regulatory orders issued 
pursuant to WAC 173-400-091 will become part of the Washington SIP upon 
issuance by a permitting authority without further action by EPA. 
However, Section 110(h) requires EPA to assemble, maintain, and 
periodically publish each SIP. Furthermore, 40 CFR 51.104(e) and 51.326 
require a State to submit to EPA all revisions to its SIP. Therefore, 
each regulatory issued pursuant to WAC 173-400-091 must be submitted to 
EPA for inclusion in the assembled SIP. While section 51.326 allows the 
submittal of such SIP revisions to occur on an annual basis, EPA 
strongly encourages permitting authorities to submit such revisions on 
a more routine basis (e.g., within 30 days of issuance) so that EPA and 
the public are aware of the major source status and current SIP 
provisions for affected sources.

IV. Effective Date

    Pursuant to Section 553(d)(3) of the Administrative Procedures Act 
(APA), this final notice is effective June 2, 1995. Section 553(d)(3) 
of the APA allows EPA to waive the requirement that a rule be published 
30 days before the effective date if EPA determines there is ``good 
cause'' and publishes the grounds for such a finding with the rule. 
Under section 553(d)(3), EPA must balance the necessity for immediate 
federal enforceability of these SIP revisions against principles of 
fundamental fairness which require that all affected persons be 
afforded a reasonable time to prepare for the effective date of a new 
rule. United States v. Gavrilovic, 551 F 2d 1099, 1105 (8th Cir., 
1977). The purpose of the requirement for a rule to be published 30 
days before the effective date of the rule is to give all affected 
persons a reasonable time to prepare for the effective date of a new 
rule. Id.
    EPA has determined good cause exists to make this Federal Register 
notice effective upon publication. The rules made federally enforceable 
by this Federal Register notice have been enforceable as a matter of 
state law for more than a year. Moreover, the 30 day publication period 
would cause undue burdens to the public, affected industry and 
permitting authorities. Under Washington's Title V program, Title V 
sources must submit Title V applications by June 7, 1995. See WAC 173-
401-500(3)(a). Many existing major stationary sources in Washington 
have applied for or have already received regulatory orders under WAC 
173-400-091 to limit their potential to emit to less than the major 
source thresholds and are relying in good faith on these regulatory 
orders to exempt them from the requirements of the Title V operating 
permits program. If the federal enforceability of these SIP revisions 
is delayed for 30 days, these sources would be in violation of the 
requirement to submit Title V applications by June 7, 1995, solely 
because the regulatory orders that they have already been issued were 
not yet federally enforceable. The imposition of the 30 day delay in 
the effective date of these SIP revisions would therefore require 
sources to prepare and submit Title V applications that would not be 
required once this approval becomes effective in 30 days, require state 
and local permitting authorities to expend unnecessary resources for 
receiving, logging in and reviewing permit applications and possible 
enforcement [[Page 28728]] action for late submittals, and delay the 
federal enforceability of the voluntary emission reductions made by 
these sources.
    Therefore, EPA has determined that good cause exists to make these 
SIP revisions immediately effective and that the principals of 
fundamental fairness are met because all known affected persons have 
been afforded a reasonable time to prepare for the effective date of 
these SIP revisions. Accordingly, pursuant to section 553(d)(3) of the 
APA, this approval of the Washington SIP is finally effective upon 
publication in the Federal Register.

V. Summary of Action

    In summary, EPA is approving: 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; -112(8); -113(5); -114; -115; -
120; -131; -136; -141; and -180.
    EPA is disapproving: 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 taking no action on: WAC 173-400-040(2), -040(4), -070(7), -
075, and -115. Note that WAC 173-400-112(8), WAC 173-400-113(5), and 
WAC 173-400-114 have not been submitted for inclusion in the Washington 
SIP.
    EPA is also approving pursuant to the authority of section 112(l) 
of the Act: WAC 173-400-091 as in effect on September 20, 1993.

Administrative Review

    This action has been classified as a Table 3 action by the Regional 
Administrator under the procedures published in the Federal Register on 
January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993 
memorandum from Michael H. Shapiro, Acting Assistant Administrator for 
Air and Radiation. The OMB has exempted this regulatory action from 
E.O. 12866 review.
    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. Each request for revision to the SIP shall be 
considered separately in light of specific technical, economic and 
environmental factors and in relation to relevant statutory and 
regulatory requirements.
    Under Section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
the private sector, of $100 million or more. Under Section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated today does 
not include a Federal mandate that may result in estimated costs of 
$100 million or more to either State, local, or tribal governments in 
the aggregate, or to the private sector. This Federal action approves 
pre-existing requirements under State or local law, and imposes no new 
Federal requirements. Accordingly, no additional costs to State, local, 
or tribal governments, or to the private sector, result from this 
action.
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by August 1, 1995. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2), 42 U.S.C. 
7607(b)(2).)
List of Subjects in 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.

    Dated: May 24, 1995.
Chuck Clarke,
Regional Administrator.

    Note: Incorporation by reference of the Implementation Plan for 
the State of Washington was approved by the Director of the Office 
of Federal Register on July 1, 1982.

    Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

    1. The authority citation for Part 52 continues to read as follows:

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

Subpart WW--Washington

    2. Section 52.2470 is amended by adding paragraph (c)(54) to read 
as follows:


Sec. 52.2470  Identification of plan.

* * * * *
    (c) * * *
    (54) On March 8, 1994, the Director of WDOE submitted to the 
Regional Administrator of EPA numerous revisions to the State of 
Washington Implementation Plan which included updated new source review 
regulations and provisions for voluntary limits on a source's potential 
to emit. The revisions were submitted in accordance with the 
requirements of section 110 and Part D of the Clean Air Act 
(hereinafter the Act).
    (i) Incorporation by reference.
    (A) March 8, 1994 and May 8, 1995 letters from WDOE to EPA 
submitting requests for revisions to the Washington SIP consisting of 
an amended state regulation; Chapter 173-400 Washington Administrative 
Code General Regulations for Air Pollution Sources, adopted on August 
20, 1993, in its entirety with the exception of 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; -112(8); -113(5); -
114; -115; -120; -131; -136; -141; and -180.
    3. Subpart WW is further amended by adding a new Sec. 52.2495 to 
read as follows:


Sec. 52.2495  Voluntary limits on potential to emit

    Terms and conditions of regulatory orders issued pursuant to WAC 
173-400-091 ``Voluntary limits on emissions'' and in accordance with 
the provisions of WAC 173-400-091, WAC 173-400-105 ``Records, 
monitoring, and [[Page 28729]] reporting,'' and WAC 173-400-171 
``Public involvement,'' shall be applicable requirements of the 
federally-approved Washington SIP and Section 112(l) program for the 
purposes of section 113 of the Clean Air Act and shall be enforceable 
by EPA and by any person in the same manner as other requirements of 
the SIP and Section 112(l) program. Regulatory orders issued pursuant 
to WAC 173-400-091 are part of the Washington SIP and shall be 
submitted to EPA Region 10 in accordance with the requirements of 
Secs. 51.104(e) and 51.326.

[FR Doc. 95-13516 Filed 6-1-95; 8:45 am]
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