[Federal Register Volume 67, Number 125 (Friday, June 28, 2002)]
[Proposed Rules]
[Pages 43575-43578]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-16363]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[FRL-7238-9]


Clean Air Act Proposed Approval of Revision to Operating Permits 
Program in Washington

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve, as a revision to Washington's 
title V air operating permits program, proposed revisions to 
Washington's regulations for insignificant emissions units and other 
proposed minor revisions to Washington's title V program. In a Notice 
of Deficiency published in the Federal Register on January 2, 2002 (67 
FR 73), EPA notified Washington of EPA's finding that Washington's 
provisions for insignificant emissions units do not meet minimum 
Federal requirements for program approval. This program revision would 
resolve the

[[Page 43576]]

deficiency identified in the Notice of Deficiency.
    EPA is proposing to approve Washington's proposed revisions at the 
same time that Washington is considering the proposed changes. 
Washington published the proposal on Wednesday, May 15, 2002. The 
public comment period on the Washington regulations runs through June 
21, 2002. EPA will only finalize its approval of Washington's revisions 
after Washington finalizes its regulations consistent with the changes 
described in this notice.

DATES: Written comments must be received on or before July 29, 2002.

ADDRESSES: Written comments should be addressed to Denise Baker, 
Environmental Protection Specialist (OAQ-107), Office of Air Quality, 
at the EPA Regional Office listed below. Copies of Washington's 
submittal, and other supporting information used in developing this 
action, are available for inspection during normal business hours at 
the U.S. Environmental Protection Agency, Region 10, 1200 Sixth Avenue, 
Seattle, Washington, 98101. Interested persons wanting to examine these 
documents should make an appointment with the appropriate office at 
least 24 hours before the visiting day.

FOR FURTHER INFORMATION CONTACT: Denise Baker, Office of Air Quality 
(OAQ-107), U.S. Environmental Protection Agency, Region 10, 1200 Sixth 
Avenue, Seattle, Washington, 98101, (206) 553-8087.

SUPPLEMENTARY INFORMATION:

I. Background

A. Approval of Washington's Title V Program

    The Clean Air Act (CAA) requires all State and local permitting 
authorities to develop operating permits programs that meet the 
requirements of title V of the Act, 42 U.S.C. 7661-7661f, and its 
implementing regulations, 40 CFR part 70. Washington's operating 
permits program was submitted in response to this directive. EPA 
granted interim approval to Washington's air operating permits program 
on November 9, 1994 (59 FR 55813). EPA repromulgated final interim 
approval of Washington's operating permits program on one issue, along 
with a notice of correction, on December 8, 1995 (60 FR 62992).
    Washington's title V operating permits program is implemented by 
the Washington Department of Ecology (Ecology), the Washington Energy 
Facility Site Evaluation Commission (EFSEC), and seven local air 
pollution control authorities: The Benton County Clean Air Authority 
(BCCAA); the Northwest Air Pollution Authority (NWAPA); the Olympic Air 
Pollution Control Authority (OAPCA); the Puget Sound Clean Air Agency 
(PSCAA); the Spokane County Air Pollution Control Authority (SCAPCA); 
the Southwest Clean Air Agency (SWCAA); and the Yakima Regional Clean 
Air Authority (YRCAA). After these State and local agencies revised 
their operating permits programs to address the conditions of the 
interim approval, EPA promulgated final full approval of Washington's 
title V operating permits program in the Federal Register on August 13, 
2001 (66 FR 42439).

B. Exemption of IEUs From Permit Content Requirements

1. Background
    Part 70 authorizes EPA to approve as part of a State program a list 
of insignificant activities and emission levels (IEUs) which need not 
be included in the permit application, provided that an application may 
not omit information needed to determine the applicability of, or to 
impose, any applicable requirement, or to evaluate the fee amount 
required under the EPA-approved schedule. See 40 CFR 70.5(c). Nothing 
in part 70, however, authorizes a State to exempt IEUs from the 
testing, monitoring, recordkeeping, reporting, or compliance 
certification requirements of 40 CFR 70.6.
    Washington's regulations contain criteria for identifying IEUs. See 
WAC 173-401-200(16), -530, -532, and -533. WAC 173-401-530(1) and 
(2)(b) provide that designation of an emission unit as an IEU does not 
exempt the unit from any applicable requirements and that the permit 
must contain all applicable requirements that apply to IEUs. The 
Washington program, however, specifically exempts IEUs from testing, 
monitoring, recordkeeping, and reporting requirements except where such 
requirements are specifically imposed in the applicable requirement 
itself. See WAC 173-401-530(2)(c). The Washington program also exempts 
IEUs from compliance certification requirements. See WAC 173-401-
530(2)(d). Because of these exemptions, EPA has long maintained that 
Washington's provisions for IEUs do not meet minimum Federal 
requirements for program approval. For additional discussion of EPA's 
position on this issue, please see 66 FR 42439-42440 (August 13, 2001) 
(final full approval of Washington's title V program) and 67 FR 73 
(January 2, 2002) (Notice of Deficiency).
2. Notice of Deficiency
    40 CFR 70.10(c)(1) provides that EPA may withdraw a part 70 program 
approval, in whole or in part, whenever the approved program no longer 
complies with the requirements of part 70. Section 70.10(b) sets forth 
the procedures for program withdrawal, and requires as a prerequisite 
to withdrawal that the permitting authority be notified of any finding 
of deficiency by EPA and that the document be published in the Federal 
Register. If the permitting authority has not taken ``significant 
action to assure adequate administration and enforcement of the 
program'' within 90 after publication of a notice of deficiency, EPA 
may withdraw the State program, apply any of the sanction specified in 
section 179(b) of the Act, or promulgate, administer, and enforce a 
Federal title V program. 40 CFR 70.10(b)(2). Section 70.10(b)(3) 
provides that if a State has not corrected the deficiency within 18 
months of the finding of deficiency, EPA will apply the sanctions under 
section 179(b) of the Act, in accordance with section 179(a) of the 
Act. Upon EPA action, the sanctions will go into effect unless the 
State has corrected the deficiencies identified in this notice within 
18 months. In addition, section 70.10(b)(4) provides that, if the State 
has not corrected the deficiency with 18 months, EPA must promulgate, 
administer, and enforce a whole or partial program within 2 years. 
Pursuant to the above provisions, EPA notified Washington of EPA's 
finding that Washington's provisions for IEUs do not meet minimum 
Federal requirements for program approval in a Notice of Deficiency 
published in the Federal Register on January 2, 2002 (67 FR 73).
3. Proposed Changes to IEU Provisions
    In response to the Notice of Deficiency, Washington has proposed to 
revise its IEU provisions so that IEUs are no longer exempt outright 
from testing, monitoring, recordkeeping, reporting, and compliance 
certification. As proposed, WAC 173-401-530(2)(c) creates a presumption 
that no testing, monitoring, recordkeeping, and reporting is required 
for IEUs, but that presumption can be overcome if such testing and 
monitoring provisions are determined by the permitting authority to be 
necessary to assure compliance. This revision is consistent with EPA's 
long-standing position that the permitting authority in general has 
broad discretion in determining the nature of any required monitoring 
and that the requirement to include in a permit testing, monitoring,

[[Page 43577]]

recordkeeping, and reporting sufficient to assure compliance does not 
require the permit to impose the same level of rigor with respect to 
all emission units. For example, it does not require extensive testing 
or monitoring to assure compliance with the applicable requirements for 
emissions units that do not have significant potential to violate 
emissions limitations or other requirements under normal operating 
conditions. Because IEUs are typically associated with lesser 
environmental impacts than other emission units and present little or 
no potential for violations of generally applicable requirements, EPA 
has stated that the permitting authority can provide in some cases that 
the status quo (i.e., no monitoring) meets the requirements of part 70.
    In response to the Notice of Deficiency, Washington has also 
proposed to revise its IEU provisions so that IEUs are no longer exempt 
from compliance certification. As proposed, WAC 173-401-530(2)(d), 
which specifically states that sources did not need certify compliance 
under WAC 173-401-630(5) for IEUs, would be deleted. WAC 173-401-
530(2)(c) would be revised to clarify that, if a title V permit does 
not require monitoring for IEUs, the permittee may certify continuous 
compliance if there were no observed, documented, or known instances of 
noncompliance during the reporting period and that, if the title V 
permit does require monitoring for IEUs, the permittee must also 
consider the required monitoring. The EPA interprets 70.5(c)(9) to 
allow for a certification of compliance where there is no required 
monitoring and, despite a ``reasonable inquiry'' to uncover other 
existing information, the responsible official has no information to 
the contrary. EPA believes that the proposed revisions to WAC 173-401-
530(c) and the proposed deletion of WAC 173-401-530(d) meet the 
requirements of part 70 with respect to testing, monitoring, 
recordkeeping, reporting, and compliance certification for IEUs. See 
White Paper Number 2 for Improved Implementation of the Part 70 
Operating Permits Program, pp. 30-31 (March 5, 1996). Therefore, EPA 
proposes to approve these changes as a revision to Washington's title V 
program if Washington finalizes the proposed changes consistent with 
this notice. Final adoption of these changes by Washington would also 
adequately address the deficiency identified in the Notice of 
Deficiency.

C. Other Proposed Changes to Washington's Title V Regulations

    Washington has also proposed other minor changes to its regulations 
governing its title V operating permits program, which EPA also 
proposes to approve.
1. Continuous and Intermittent Compliance
    Washington has proposed to add definitions for ``continuous 
compliance'' and ``intermittent compliance'' to implement the 
compliance certification requirements of its title V program. Although 
these terms are not currently defined in part 70, Washington's proposed 
definitions are identical to definitions in the instructions to the 
standard annual compliance certification form developed by EPA for use 
by permittees subject to the Federal operating permits program. See 
http://www.epa.gov/oar/oaqps/permits/p71forms.html. EPA therefore 
believes that these proposed new definitions are approvable. EPA notes, 
however, that it intends to propose changes to the compliance 
certification requirements of part 70 (40 CFR 70.6(c)(5)) in the near 
future, which may include definitions of the terms ``continuous 
compliance'' and ``intermittent compliance.'' Washington would be 
required to later revise its compliance certification requirements, 
including the definitions of ``continuous compliance'' and 
``intermittent compliance,'' if Washington's provisions are not 
consistent with the compliance certification requirements adopted by 
EPA after notice and comment rulemaking.
2. Major Source
    Washington has proposed to revise the definition of ``major 
source'' in response to recent amendments to the definition of ``major 
source'' in part 70. See 66 FR 59161 (November 27, 2001). EPA made two 
changes from the 1992 rule regarding when non-Hazardous Air Pollutant 
(HAP) fugitive emissions are included in determining major source 
status. The 1992 rule required that non-HAP fugitive emissions be 
counted for all industrial facilities in source categories covered by 
New Source Performance Standards (NSPS) or National Emission Standards 
for Hazardous Air Pollutants (NESHAP) standards, but only with regards 
to pollutants specifically regulated for the source category. The final 
amendment to part 70 changed this requirement: (1) To address only 
source categories covered by NSPS or NESHAP standards promulgated after 
August 7, 1980; and (2) to delete the limitation that only pollutants 
specifically regulated by the standard be included. Consistent with 
this amendment, Washington is proposing to revise its rule to delete 
the limitation on only pollutants specifically regulated by the 
standard. However, Washington is not limiting the applicability of this 
requirement to sources in categories regulated after August 7, 1980. 
Without this date, Washington's rule is more stringent than part 70 
(i.e., requires that fugitive emissions be included for more categories 
of sources). Therefore, Washington's proposed change in the definition 
of ``major source'' is approvable.
3. Standard Application Forms
    Washington has also proposed to revise its regulations to clarify 
that the use of a standard title V operating permit application form is 
not required if the owner/operator provides all of the required data 
elements for a complete application. As EPA has previously stated, 
although part 70 clearly requires that States develop a standard permit 
application form, part 70 does not require permitting authorities to 
require permit applicants to use the standard form provided that all 
the required information is submitted by the permit applicant. See 
Response to Comments Regarding Alleged Deficiencies in Washington's 
Title V Operating Permits Program, dated December 14, 2001.
4. Prompt Reporting of Permit Deviations
    Finally, Washington has proposed to amend its rules to provide that 
deviations that do not represent a potential threat to human health or 
safety must be reported no later than thirty days after the end of the 
month during which the deviation is discovered or as part of routine 
emission monitoring reports, whichever occurs first. Reporting of 
deviations that represent a potential threat to human health and safety 
continues to be required as soon as possible, but in no case later than 
twelve hours after the deviation is discovered. Currently in 
Washington, permitting authorities have the discretion to require 
reporting of ``other deviations'' (that is, deviations that do not 
represent a potential threat to human health or safety) either no later 
than thirty days after the end of the month during which the deviation 
is discovered or as part of routine emission monitoring reports. EPA 
raised concerns that this could allow the reporting of excess emissions 
six months after the deviation occurred. In response to EPA's concerns, 
all

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Washington permitting authorities have committed to EPA to require 
reporting of all ``other'' deviations no later than 30 days after the 
end of the month in which the deviation is discovered. The proposed 
change to the provisions for prompt reporting of deviations would make 
Washington regulations consistent with the current practice of 
Washington permitting authorities, and EPA believes the change is 
consistent with the requirements of part 70.

II. Final Action

    EPA is proposing to approve as a revision to Washington's title V 
air operating permits program proposed revisions to Washington's 
regulations for IEUs, specifically, revisions to WAC 173-401-530(2)(c) 
and deletion of WAC 173-401-530(2)(d). EPA has determined that the 
proposed changes meet the requirements of title V and part 70 relating 
to IEUs and adequately address the deficiency identified in the Notice 
of Deficiency published in the Federal Register on January 2, 2002 (67 
FR 73). EPA is also proposing to approve the proposed addition of 
definitions for ``continuous compliance'' and ``intermittent 
compliance,'' the proposed change to the definition of ``major 
source,'' proposed changes to clarify that the use of a standard 
application form is not required if all required information is 
provided by the applicant, and a proposed change to the time frame for 
the prompt reporting of permit deviations. Because the proposed 
revisions Chapter 173-401 apply throughout the State of Washington, 
this proposed approval applies to all State and local agencies that 
implement Washington's operating permits program. As discussed above, 
those agencies include Ecology, EFSEC, BCCAA, NWAPA, OAPCA, PSCAA, 
SCAPCA, SWCAA, and YRCAA.
    Consistent with EPA's action granting Washington full approval, 
this approval does not extend to ``Indian Country'', as defined in 18 
USC 1151, except with respect to non-trust lands within the 1873 Survey 
Area of the Puyallup Reservation.\1\ See 66 FR 42439, 42440 (August 13, 
2001); 64 FR 8247, 8250-8251 (February 19, 1999); 59 FR 42552, 42554 
(August 18, 1994).
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    \1\ As these terms are defined in the Agreement dated August 27, 
1988 among the Puyallup Tribe of Indians, local governments in 
Pierce County, the State of Washington, the United States, and 
certain private property owners.
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III. Administrative Requirements

    Under Executive Order 12866, ``Regulatory Planning and Review'' (58 
FR 51735, October 4, 1993), this action is not a ``significant 
regulatory action'' and therefore is not subject to review by the 
Office of Management and Budget. Under the Regulatory Flexibility Act 
(5 U.S.C. 601 et seq.), the Administrator certifies that this rule will 
not have a significant economic impact on a substantial number of small 
entities because it merely approves State law as meeting Federal 
requirements and imposes no additional requirements beyond those 
imposed by State law. This rule does not contain any unfunded mandates 
and does not significantly or uniquely affect small governments, as 
described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) 
because it approves pre-existing requirements under State law and does 
not impose any additional enforceable duties beyond that required by 
State law. This rule also does not have tribal implications because it 
will not have a substantial direct effect on one or more Indian tribes, 
on the relationship between the Federal Government and Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal Government and Indian tribes, as specified by Executive Order 
13175, ``Consultation and Coordination with Indian Tribal Governments'' 
(65 FR 67249, November 9, 2000). This rule also does not have 
Federalism implications because it will not have substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government, as specified 
in Executive Order 13132, ``Federalism'' (64 FR 43255, August 10, 
1999). The rule merely approves existing requirements under State law, 
and does not alter the relationship or the distribution of power and 
responsibilities between the State and the Federal government 
established in the Clean Air Act. This rule also is not subject to 
Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) or 
Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355 
(May 22, 2001), because it is not a significantly regulatory action 
under Executive Order 12866. This action will not impose any collection 
of information subject to the provisions of the Paperwork Reduction 
Act, 44 U.S.C. 3501 et seq., other than those previously approved and 
assigned OMB control number 2060-0243. For additional information 
concerning these requirements, see 40 CFR part 70. An agency may not 
conduct or sponsor, and a person is not required to respond to, a 
collection of information unless it displays a currently valid OMB 
control number.
    In reviewing State operating permit programs submitted pursuant to 
title V of the Clean Air Act, EPA will approve State programs provided 
that they meet the requirements of the Clean Air Act and EPA's 
regulations codified at 40 CFR part 70. In this context, in the absence 
of a prior existing requirement for the State to use voluntary 
consensus standards (VCS), EPA has no authority to disapprove a State 
operating permit program for failure to use VCS. It would, thus, be 
inconsistent with applicable law for EPA, when it reviews an operating 
permit program, to use VCS in place of a State program that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 USC 272 note) do not apply.

List of Subjects in 40 CFR Part 70

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Operating permits, 
Reporting and recordkeeping requirements.

    Dated: June 18, 2002.
John Iani,
Regional Administrator, Region 10.
[FR Doc. 02-16363 Filed 6-27-02; 8:45 am]
BILLING CODE 6560-50-P