[Federal Register Volume 60, Number 205 (Tuesday, October 24, 1995)]
[Rules and Regulations]
[Pages 54439-54441]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26200]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[WA41-1-7114a; FRL-5283-6]


Approval and Promulgation of Implementation Plans: Washington

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: Environmental Protection Agency (EPA) approves the Regulations 
of the Northwest Air Pollution Authority (NWAPA) for the control of air 
pollution in Island, Skagit, and Whatcom Counties, Washington, as 
revisions to the Washington State Implementation Plan (SIP). These 
Regulations were submitted by the Director of the Washington State 
Department of Ecology (WDOE) on February 14, 1995. In accordance with 
state law, NWAPA rules must be at least as stringent as the WDOE 
statewide rules.

DATES: This action is effective on December 26, 1995 unless adverse or 
critical comments are received by November 24, 1995. If the effective 
date is delayed, timely notice will be published in the Federal 
Register.

ADDRESSES: Written comments should be addressed to: Montel Livingston, 
SIP Manager, Air Programs Branch (AT-082), EPA, 1200 Sixth Avenue, 
Seattle, Washington 98101.
    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, DC 20460. Copies of 
material submitted to EPA may be examined during normal business hours 
at the following locations: EPA, Region 10, Air Programs Branch, 1200 
Sixth Avenue (AT-082), Seattle, Washington 98101, and Washington 
Department of Ecology, P.O. Box 47600, Olympia, Washington 98504.

FOR FURTHER INFORMATION CONTACT: Stephanie Cooper, Air Programs Branch 
(AT-082), EPA, Region 10, Seattle, Washington 98101, (206) 553-6917.

SUPPLEMENTARY INFORMATION:

I. Background

    On February 14, 1995, the Director of WDOE submitted to EPA Region 
10 revised and updated regulations for NWAPA affecting Island, Skagit, 
and Whatcom Counties. NWAPA and WDOE held a joint public hearing on 
October 13, 1994 to receive public comment on the revisions to NWAPA's 
rules and the submittal to EPA as a revision to the Washington SIP. 
These regulations became effective as a matter of state law on November 
13, 1994.
    These revisions to NWAPA's rules provide clarification and 
corrections to previously adopted NWAPA rules in order to reflect 
changes in the Washington Clean Air Act, Washington Administrative 
Codes (WAC), etc., and to raise fees that reflect the added costs of 
performing these duties. The amended rules cover such subjects as 
criminal and civil penalties, notice of construction procedures, 
registration classes, volatile organic compounds (VOC) controls, and 
others (please see Description of Plan Revisions, below). 

[[Page 54440]]


II. Description of Plan Revisions

    This rulemaking action approves, as part of the Washington SIP, 
certain portions of NWAPA's Regulations related to the control of 
criteria pollutants under section 110 of the Act. State law requires 
that the regulations of local air pollution control agencies be at 
least as stringent as state law (WAC-400-020(2)). In this rulemaking, 
EPA is approving the following sections:

104.1--Adoption of State Laws and Rules
132--Criminal Penalty
133--Civil Penalty
200--Definitions
300--Notice of Construction when Required
301--Information Required for Notice of Construction and Application 
for Approval, Public Notice, Public Hearing
302--Issuance of Approval or Order
322--Exemptions from Registration
324--Fees (except for section 324.121)
340--Report of Breakdown and Upset
451--Emission of Air Contaminant-Visual Standard
462--Emission of Sulfur Compounds
580--Volatile Organic Compound Control

    The following discussion highlights elements of NWAPA's rules that 
EPA is approving: Section 104.1 allows NWAPA to position itself as the 
primary enforcement agency for the three counties under its 
jurisdiction by incorporating by reference the latest versions of the 
Washington State Clean Air Act and the Washington State Administrative 
Procedures Act, as well as other state rules. Sections 132 and 133--
Criminal Penalty and Civil Penalty, respectively, were amended to be 
consistent with the enforcement requirements of the federal Title V air 
operating permit program (40 CFR 70.11(a)(3)). The criminal penalty 
language was reworded to clarify that the maximum fine for criminal 
violations is ten thousand dollars per day per violation, or by 
imprisonment in the county jail for not more than one year, or both. 
Civil penalties have been adjusted from $10,660 to $11,000 per day per 
violation. Definitions, section 200, were revised to make terms 
consistent with state and federal definitions, and definitions for 
concealment, existing stationary facility, fugitive dust, fugitive 
emissions, modification, new source, and others, were added to the 
NWAPA regulations. Section 300 was changed to clarify when an 
investigation fee is required. Slight typographical errors were 
corrected by the amendments to sections 301 and 340. New threshold 
levels below which no ``notice of construction'' is required are added 
by section 322. New emission units or activities with emissions below 
the following levels are exempt: 5 tons per year (tpy) of Carbon 
Monoxide, 2 tpy of nitrogen oxides, 2 tpy of sulfur oxides, 2 tpy of 
volatile organic compounds, .75 tpy of particulate matter with an 
aerodynamic diameter less than or equal to a nominal 10 micrometers 
(PM10), 0.03 tpy of lead, and threshold levels for hazardous air 
pollutants as defined in WAC Chapter 173-401-531. Inspection fees have 
been raised in section 324 for fuel burning equipment, scrubbers, 
incinerators, and gasoline stations. Application fees for a ``bubble'' 
and ``emission reduction credit'' have also been raised. Part of 
section 451 was deleted as it was less stringent than state rules.
    Both sections 462 and 580 were revised to be consistent with state 
rules. Emission of Sulfur Compounds, section 462, now measures sulfur 
dioxide/sulfur compound emissions for a sixty consecutive minute 
period. Section 580, Volatile Organic Compound Control, was modified to 
change the throughput threshold requirements for Stage I vapor control 
as well as to revise the definition of a gasoline station.
    In its February 14, 1995 submission, NWAPA did not submit its rules 
regarding Solid Fuel Burning Device Standards (section 480); Outdoor 
Burning (section 501); Grass Seed Fields (section 504); Refuse 
Burning--Time Restriction (section 511); Odor Control Measures (section 
535); Concealment and Masking (section 540); and Asbestos Control 
Standards (section 570) for inclusion in the SIP. Therefore, statewide 
rules for open burning and concealment and masking apply to NWAPA's 
jurisdiction.

III. Summary of EPA Action

    In this action, EPA approves numerous additions to the NWAPA rules 
as revisions to the Washington SIP. Specifically, EPA approves the 
following sections: 104.1, 132, 133, 200, 300, 301, 302, 322, 324 
(except for section 324.121), 340, 451, 462, and 580. EPA is taking no 
action on section 324.121 because it addresses fees for sources subject 
to the state's Title V air operating permit program and has been 
approved as part of that program. See 59 FR 55813 (November 9, 1994).

IV. Administrative 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 
Clean Air Act (CAA) do not create any new requirements, but simply 
approve requirements that the state is already imposing. Therefore, 
because the federal SIP-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 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).
    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 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.
    The EPA has reviewed this request for revision of the federally-
approved SIP for conformance with the provisions of the 1990 Clean Air 
Act Amendments enacted on November 15, 1990. The EPA has determined 
that this action conforms with those requirements. 

[[Page 54441]]

    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.
    This action has been classified as a Table 3 action for signature 
by the Regional Administrator under the procedures published in the 
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a 
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for 
Air and Radiation. The Office of Management and Budget (OMB) has 
exempted this regulatory action from E.O. 12866 review.
    The EPA is publishing this action without prior proposal because 
the Agency views this as a noncontroversial amendment and anticipates 
no adverse comments. However, in a separate document in this Federal 
Register publication, the EPA is proposing to approve the SIP revision 
should adverse or critical comments be filed. This action will be 
effective December 26, 1995 unless, by November 24, 1995 adverse or 
critical comments are received.
    If the EPA receives such comments, this action will be withdrawn 
before the effective date by publishing a subsequent document that will 
withdraw the final action. All public comments received will be 
addressed in a subsequent final rule based on this action serving as a 
proposed rule. The EPA will not institute a second comment period on 
this action. Any parties interested in commenting on this action should 
do so at this time. If no such comments are received, the public is 
advised that this action will be effective December 26, 1995.
    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 December 26, 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

    Air pollution control, Carbon monoxide, Hydrocarbons, Incorporation 
by reference, Ozone, Volatile organic compounds.

    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.

    Dated: August 8, 1995.
Charles Findley,
Acting Regional Administrator.
    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)(56) to read 
as follows:


Sec. 52.2470  Identification of plan.

* * * * *
    (c) * * *
    (56) On February 14, 1995, the Director for the Washington State 
Department of Ecology (WDOE) submitted amended regulations for the 
Northwest Air Pollution Authority (NWAPA) as a revision to the 
Washington State Implementation Plan (SIP).
    (i) Incorporation by reference.
    (A) The February 7, 1995 letter from the Director of WDOE 
submitting the amended NWAPA regulations to the Environmental 
Protection Agency (EPA); the Northwest Air Pollution Authority 
Regulations (approving sections 104.1, 132, 133, 200, 300, 301, 302, 
322, 324 (except for 324.121), 340, 451, 462, 580) adopted on February 
10, 1995.

[FR Doc. 95-26200 Filed 10-23-95; 8:45 am]
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