[Federal Register Volume 61, Number 101 (Thursday, May 23, 1996)]
[Rules and Regulations]
[Pages 25791-25794]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12892]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[WA48-7121a; FRL-5506-3]


Approval and Promulgation of Implementation Plans: Washington

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving in 
part, and disapproving in part, the Energy Facility Site Evaluation 
Council Regulations (EFSEC) as revisions to the Washington State 
Implementation Plan (SIP). These revisions were submitted to EPA by the 
Director of the Washington Department of Ecology (WDOE) on November 29, 
1995 and in accordance with the requirements of Title I Section 110 and 
part D of the Clean Air Act (hereinafter referred to as the Act). EPA 
is taking no action on a number of the submitted provisions which are 
unrelated to the purposes of the implementation plan.

DATES: This action is effective on July 22, 1996 unless adverse or 
critical comments are received by June 24, 1996. 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, Office of Air Quality (OAQ-107), 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, Environmental Protection Agency, 401 M Street, SW., Washington, 
D.C. 20460. Copies of material submitted to EPA may be examined during 
normal business hours at the following locations: EPA, Region 10, 
Office of Air Quality, 1200 Sixth Avenue (OAQ-107), Seattle, Washington 
98101; and, the State of Washington, Department of Ecology, 4550 Third 
Avenue SE, Lacey, Washington 98504.

FOR FURTHER INFORMATION CONTACT: Ed Jones, Office of Air Quality (OAQ-
107), EPA, Seattle, Washington 98101, (206) 553-1743.

SUPPLEMENTARY INFORMATION

I. Background

    The Energy Facility Site Evaluation Council (EFSEC) amended Chapter 
463-39 of the Washington Administrative Code (WAC) on September 21, 
1995. The Washington Department of Ecology (WDOE), on behalf of the 
Governor, submitted the amended regulations to EPA on November 29, 1995 
as a revision to the Washington SIP. The amended regulations pertain to 
General and Operating Permit Regulations for Air Pollution Sources 
administered by EFSEC, and adopt by reference various other state 
regulations. Some of the regulations adopted by reference have been the 
subject of previous EPA actions on the SIP.

II. This Action

    The state of Washington's November 29, 1995 request for SIP 
revision included fifteen regulations contained in Chapter 463-39 of 
the WAC. Certain of these regulations are amendments to those currently 
contained in the SIP; others are entirely new additions. As part of the 
submittal the state also requested that particular outdated WAC 463-39 
regulations, currently in the approved SIP, be removed.
    A. Unchanged. EPA approves two Chapter 463-39 regulations currently 
in the SIP, and unchanged by the November 29, 1995 revisions. These are 
WAC 463-39-135 and -170.
    B. Modifications. EPA approves, with minor exception, the 
modification of five amended Chapter 463-39 regulations currently in 
the SIP. These are: WAC 463-39-010, -020, -030, -100, and -120. The 
language in three of these regulations--WAC 463-39-010 ``Purpose,'' 
463-39-020 ``Applicability,'' and 463-39-100 ``Registration''--has been 
modified only slightly over that used in versions currently in the SIP.
    WAC 463-39-030 ``Additional Definitions'' has been modified to 
eliminate the listing of specific terms and their regulatory meanings. 
The modified regulation is brief and states that in addition to the 
definitions provided in WAC 173-400-030, 173-401-200, and 173-406-101, 
``ecology'' and ``authority'' shall be synonymous with EFSEC. WAC 173-
400-030 has been previously approved for inclusion in the SIP, and EPA 
approves the use of these definitions for the purposes of defining 
terms in Chapter 463-39.
    WAC 463-39-120 ``Monitoring and Special Report'' modifies language 
contained in the regulation so that: (a) Ecology may authorize a 
designee for operating its surveillance program; (b) the surveillance 
program must be in accord with Chapter 173-400 regulations; and, (c) 
subparts 2-7 of the previous regulation (concerning ``investigation of 
conditions'', ``source testing'', etc.) are removed. Although these six 
subparts are removed, however, they are substantively found in WAC 173-
400-105 and -107, both of which are contained in the approved SIP, and 
adopted by reference in 463-39-005.
    In approving the modifications noted above, it must be noted that 
reference to Chapter 173-401 is made in four of the amended 
regulations: WAC 463-39-020, -030, -100, and -120. Chapter 173-401 
concerns Title V ``Operating Permit Regulation'' and regulations in 
this Chapter have not been included in the SIP. In addition, reference 
is made to: Chapter 173-406 ``Acid Rain Regulation'' in WAC 463-39-020, 
-030, and -120; and, Chapter 173-460 ``Controls for New Sources of 
Toxic Air Pollutants'' in WAC 463-39-020 and -120. These regulations 
are also not a part of the approved SIP. As a consequence, EPA is not 
taking action on the particular Chapter 173-401, 173-406, and 173-460 
references embodied within the four regulations noted.
    C. Additions. The state of Washington has requested that eight new 
Chapter 463-39 regulations be added to the SIP. These are: WAC 463-39-
005, -070, -090, -095, -105, -115, -140, and -230.
    New regulation WAC 463-39-005 ``Adoption by Reference'' adopts 
twenty-four of the state's Chapter 173-400 regulations. On June 2, 1995 
EPA approved, disapproved, and took no action on various state 
regulations contained in Chapter 173-400, submitted by the state for 
the purpose of inclusion in the implementation plan (60 FR 28726). The 
rationale for EPA's decisions on these regulations is described in the 
February 22, 1995 Federal Register (60 FR 9802) proposing the 
rulemaking. Of the twenty-four Chapter 173-400 regulations referenced 
in WAC 463-39-005, thirteen are presently contained, in whole, in the 
approved SIP. These are: WAC 173-400-030 ``Definitions,'' -060 
``Emission Standards for General Process Units,''

[[Page 25792]]

-081 ``Startup and Shutdown,'' -091 ``Voluntary Limits on Emissions,'' 
-105 ``Records, Monitoring, and Reporting,'' -107 ``Excess Emissions,'' 
-110 New Source Review,'' -151 ``Retrofit Requirements for Visibility 
Protection,'' -161 Compliance Schedules,'' -171 ``Public Involvement,'' 
-190 ``Requirements for Nonattainment Areas,'' -200 ``Creditable Stack 
Height and Dispersion Techniques,'' and -205 ``Adjustment for 
Atmospheric Conditions.'' Four others are contained in the SIP, but are 
qualified with exceptions (i.e., not all parts of the regulations are 
included within the implementation plan). These are: WAC 173-400-040, -
050, -112, and -113. Five of the adopted 173-400 regulations are 
regulations disapproved from SIP inclusion in EPA's June 2, 1995 
action. These are: WAC 173-400-120 ``Bubble Rules,'' -131 ``Issuance of 
Emission Reduction Credits,'' -136 ``Use of Emission Reduction 
Credits,'' -141 ``Prevention of Significant Deterioration,'' and -180 
``Variance.'' Of the remainder, one regulation (WAC 173-400-114 
``Requirements for Replacement or Substantial Alteration of Emission 
Control Technology at an Existing Stationary Source'') was not 
previously submitted by the state for inclusion into the SIP, and the 
other (WAC 173-400-075 ``Emission Standards for Sources Emitting 
Hazardous Air Pollutants''), though submitted, was not acted upon by 
EPA.
    As noted above, four state regulations were previously only 
partially approved for inclusion into the SIP. Portions of WAC 173-400-
040 ``General Standards for Maximum Emissions,'' adopted by reference 
in 463-39-005 to replace WAC 463-390-040, were excluded from the SIP. 
Specifically, provisions (1)(c) and (1)(d), exceptions to meeting the 
opacity standard; provision (2), regarding fallout of PM; provision 
(4), regarding odor generation; and, the second paragraph of provision 
(6), regarding SO2, were all excluded. Similarly, WAC 463-39-050 
``Minimum Emission Standards for Combustion and Incineration Sources'' 
was replaced by reference to WAC 173-400-050 ``Emission Standards for 
Combustion and Incineration Sources'' (again, adopted in 463-39 005). 
The exception to the use of the oxygen correction factor in 173-400-
050(3), however, was excluded from the SIP. Finally, section (8) of WAC 
173-400-112 ``Requirements for New Sources in Nonattainment Areas'' and 
section (5) of 173-400-113 ``Requirements for New Sources in Attainment 
or Unclassifiable Areas'' were also not approved by EPA for inclusion 
in the SIP.
    In approving WAC 463-39-005, therefore, EPA notes the same 
exceptions noted in the previous rulemaking. That is, only those 
Chapter 173-400 regulations and portions of regulations, approved in 
earlier EPA actions which are adopted by reference within WAC 463-39-
005, are hereby approved for the purposes of the implementation plan. 
As a consequence, WAC 173-400-075, -114, -120, -131, -136, -141, and -
180 are disapproved, and 173-400-040, -050, -112, and -113 are only 
approved in part.
    Besides referencing Chapter 173-400, regulation WAC 463-39-005 also 
adopts numerous Chapter 173-401, 173-406, and 173-460 regulations. As 
previously explained, none of these regulations is currently in the 
implementation plan. Since EPA has taken no action on these provisions, 
corresponding paragraphs (2), (3), and (4) of WAC 463-39-005 are not 
approved for inclusion in the implementation plan.
    EPA approves with exception WAC 463-39-095 ``Permit Issuance.'' 
This provision requires that permits be attached to site certification 
agreements, and that permits become effective upon the governor's 
approval and upon execution of the site certification agreement. In 
approving WAC 463-39-095 EPA excepts those references to WAC 
regulations not contained in the SIP. Specifically, WAC 463-39-095 
refers to Permits issued in accord with Chapters 173-401, 173-406, and 
173-460; EPA is not taking action on these particular references.
    EPA also approves WAC 463-39-230 ``Regulatory Actions'' into the 
SIP. This regulation, though new, modifies and expands upon language 
contained in WAC 463-39-130 (which has subsequently been repealed), 
previously approved for inclusion in the SIP.
    EPA is taking no action on new regulation WAC 463-39-070 
``Radioactive Emissions.'' This provision is not related to the 
criteria pollutants regulated under the SIP.
    EPA is taking no action on new regulation WAC 463-39-105 ``Fees.'' 
The regulation asserts that fees shall be assessed to recover various 
operating-permit program costs. Since the focus of the provision is on 
Title V programs, its requirements are unrelated to the SIP.
    EPA is also taking no action on WAC 463-39-090 ``Permit Application 
Form'' and -140 ``Appeals Procedure.'' The substantive requirements of 
both of these regulations depend on references to other state 
regulations which have not been included in the SIP. WAC 463-39-090 
refers to Chapters 173-401 and 173-406; WAC 463-39-140 refers to WAC 
463-54-070.
    Finally, EPA is taking no action on WAC 463-39-115 ``Standards of 
Performance for New Stationary Sources.'' This provision implements 
provisions of section 111 of the Act and is unrelated to the SIP.
    D. Deletions. EPA approves the deletion of seven repealed Chapter 
463-39 regulations currently in the SIP. These are: WAC 463-39-040, -
050, -060, -080, -110, -130, and -150. Five of these regulations have 
been replaced by similar Chapter 173-400 regulations, adopted by 
reference in WAC 463-39-005, and approved (at least in part) for 
inclusion into the SIP. Specifically, WAC 463-39-040 ``General 
Standards for Maximum Permissable Emissions'' has been superceded by 
WAC 173-400-040 ``General Standards for Maximum Emissions,'' WAC 463-
39-050 ``Maximum Emission Standards for Combustion and Incineration 
Sources'' by WAC 173-400-050 ``Emission Standards for Combustion and 
Incineration Units,'' WAC 463-39-060 ``Maximum Emission Standards for 
General Process Sources'' by WAC 173-400-060 ``Emission Standards for 
General Process Units,'' WAC 463-39-080 ``Compliance Schedules'' by WAC 
173-400-161 of the same name, and WAC 463-39-110 ``New Source Review'' 
by WAC 173-400-110 of the same name.
    WAC 463-39-150 ``Variance'' has been replaced by reference to WAC 
173-400-180 (of the same name), but the latter was previously 
disapproved for inclusion into the SIP in EPA's June 2, 1995 action (60 
FR 28726). WAC 463-39-130 ``Regulatory Actions,'' as noted above, has 
been replaced by WAC 463-39-230 of the same name.
    In summary, then, EPA approves without exception the inclusion of 
the following Chapter 463-39 regulations into the SIP: amended -010, 
new -230, -135, and -170. The latter two regulations have been approved 
previously, have not been modified, and will remain in the 
implementation plan. EPA approves the inclusion of new WAC 463-39-
005(1) with the exception of those Chapter 173-400 regulations, or 
portions of regulations, adopted by reference in -005(1) which 
themselves are not contained in the SIP. EPA also approves the 
inclusion of amended WAC 463-39-020, amended -030, new -095, amended -
100, and amended -120 with the exception of requirements within those 
six regulations which refer to other Chapter 173 or 463 state 
regulations not contained in the SIP.
    Certain repealed Chapter 463-39 regulations will, as part of this 
action,

[[Page 25793]]

be removed from the SIP. These are: WAC 463-39-040, -050, -060, -080, -
110, -130, and -150. EPA is taking no action on new WAC 463-39-005(2)-
(4), new -070, new -090, new -105, -115, and new -140.

III. 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 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.
    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 July 22, 1996 unless, by June 24, 1996, 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 July 22, 1996.
    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 July 22, 1996. 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, 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: May 6, 1996.
Jane S. Moore,
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)(60) to read 
as follows:


Sec. 52.2470  Identification of plan.

* * * * *
    (c) * * *
    (60) On November 29, 1995 the Director of WDOE submitted to the 
Regional Administrator of EPA the Energy Facility Site Evaluation 
Council Regulations (EFSEC) as a revision to the Washington State 
Implementation Plan (SIP).
    (i) Incorporation by reference.
    (A) The November 29, 1995 letter from WDOE to EPA submitting 
requests for revisions to the Washington SIP to include the Energy 
Facility Site Evaluation Council Regulations; EFSEC Regulation Chapter 
463-39 Washington Administrative Code General and Operating Permit 
Regulations for Air Pollution Sources, (excluding the following 
sections: 005 (2) through (4); -070; -090; -105; -115; -140; those 
portions of -005(1), -020, -030, -095, -100, and -120 containing any 
reference to regulations or provisions of regulations in Chapters 173-
400, 173-

[[Page 25794]]

401, 173-406, 173-460, or 463-58a) adopted on November 16, 1995.

[FR Doc. 96-12892 Filed 5-22-96; 8:45 am]
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