[Federal Register Volume 67, Number 231 (Monday, December 2, 2002)]
[Rules and Regulations]
[Pages 71479-71482]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-30465]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[FRL-7415-2]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is taking final action to approve, as a revision to 
Washington's title V air operating permits program, revisions to 
Washington's regulations for insignificant emissions units and other 
minor revisions to Washington's title V regulations. 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. Final approval of this 
program revision resolves the deficiency identified in the Notice of 
Deficiency.

EFFECTIVE DATE: January 2, 2003.

ADDRESSES: 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. A reasonable fee may be charged for copies.

FOR FURTHER INFORMATION CONTACT: Jeff Kenknight, Office of Air Quality 
(OAQ-107), U.S. Environmental Protection Agency, Region 10, 1200 Sixth 
Avenue, Seattle, Washington 98101, (206) 553-6641.

SUPPLEMENTARY INFORMATION:

I. Background

    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 Clean Air Authority (BCAA); 
the Northwest Air Pollution Authority (NWAPA); the Olympic Regional 
Clean Air Authority (ORCAA); the Puget Sound Clean Air Agency (PSCAA); 
the Spokane County Air Pollution Control Authority

[[Page 71480]]

(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 on August 13, 2001 
(66 FR 42439).
    On May 15, 2002, Ecology proposed revisions to its regulations for 
insignificant emissions units (IEU), as well as other minor revisions 
to its title V regulations. The proposed revisions to Ecology's IEU 
regulations were intended to resolve a deficiency in Washington's title 
V program identified by EPA in a notice of deficiency published in the 
Federal Register on January 2, 2002 (67 FR 73). On June 28, 2002, EPA 
proposed to approve Ecology's proposed revisions to its title V 
regulations at the same time that Ecology was considering and taking 
public comment on the proposed changes. See 67 FR 43575. The public 
comment period on the Ecology regulations ended on June 21, 2002. In 
response to comments received by Ecology during that public comment 
process, Ecology made minor changes to its proposed title V revisions. 
On September 26, 2002, Ecology submitted the final revisions to its 
title V regulations and asked EPA to give final approval to the 
revisions.
    EPA received no comments on its proposal to approve Ecology's 
proposed revisions to its title V regulations. EPA has reviewed 
Ecology's final submittal and has determined that the minor changes 
made by Ecology in response to public comment at the state level do not 
change the substance of the regulatory revisions proposed by Ecology 
and continue to meet the requirements of part 70. Accordingly, EPA is 
taking final action to approve Ecology's final revisions to its IEU 
provisions, as well as the other minor revisions to its title V 
regulations.
    The version of WAC 173-401-530 (Ecology's IEU provision) finalized 
by Ecology is identical to the proposed rule submitted to EPA in May 
2002. Ecology did make a minor change to the definition of ``continuous 
compliance,'' which is used in the IEU provision as well as elsewhere 
in Ecology's title V regulations in describing the compliance 
certification obligations of permittees. The definition of ``continuous 
compliance'' proposed by Ecology was identical to the definition 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. Under that definition, a permittee could certify 
continuous compliance if there were no ``deviations and no other 
information that indicates deviations, except for malfunctions or 
upsets during which compliance is not required.'' The final definition 
adopted by Ecology states that a permittee could certify continuous 
compliance if there were no ``deviations and no other information that 
indicates deviations, except for unavoidable excess emissions or other 
operating conditions during which compliance is not required.'' Ecology 
has clarified that nothing in the final definition of ``continuous 
compliance'' it adopted was intended to take a position on whether 
compliance is or is not required during unavoidable excess emissions or 
other operating conditions. EPA therefore continues to believe that the 
definition of ``continuous compliance'' is approvable. As noted by EPA 
in the proposal and by Ecology during its rulemaking process, however, 
Ecology would be required to later revise its definition of 
``continuous compliance'' if EPA later adopts a definition of this term 
after notice and comment rulemaking and Ecology's definition is not 
consistent with the Federal definition. See 67 FR 43577.
    Ecology also added a sentence to the proposed definition of 
``intermittent compliance,'' which is also used in describing the 
compliance certification obligations of permittees. The added sentence 
clarifies that a certification of intermittent compliance is 
appropriate where the monitoring data or other information shows there 
are periods of noncompliance or periods of time during which monitoring 
required by the permit was not performed or recorded. EPA finds this 
definition approvable, subject again to the qualification that if EPA 
later adopts a definition of ``intermittent compliance'' after notice 
and comment rulemaking and if the Ecology definition is not consistent 
with the Federal definition, Ecology would be required to later revise 
its definition.
    Ecology also made a further change to the definition of ``major 
source'' in its final title V revisions. See WAC 173-401-200. In the 
final rule adopted by Ecology, the definition of ``major source'' is 
consistent with EPA's recent amendments to the definition of ``major 
source'' in part 70 in all respects. See 66 FR 59161 (November 27, 
2001). As originally proposed, the Ecology definition was more 
stringent than EPA's definition in one respect. See 67 FR 43577. 
Because the final definition of ``major source'' adopted by Ecology is 
consistent with the definition in part 70, EPA continues to believe 
that Ecology's final change to the definition of ``major source'' is 
approvable.
    Finally, Ecology made a minor change to its proposed revision to 
the time for reporting of deviations that do not represent a potential 
threat to human health or safety.\1\ See WAC 173-401-615(3)(b). As 
proposed, such a deviation was required to be reported no later than 30 
days after the end of the month during which the deviation is 
discovered or as part of routine emission monitoring reports, whichever 
occurred first. In the final version, the rule requires such deviations 
to be reported no later than 30 days after the end of the month during 
which the deviation is discovered. This is still more stringent that 
the previous version of Ecology's rule which gave permitting 
authorities 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 30 days after the end of the 
month during which the deviation is discovered or as part of routine 
emission monitoring reports. EPA therefore continues to believe that 
the final rule adopted by Ecology is consistent with the requirements 
of part 70.
---------------------------------------------------------------------------

    \1\ 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. WAC 173-401-615(3)(b).
---------------------------------------------------------------------------

II. Final Action

    EPA is taking final action to approve as a revision to Ecology's 
title V air operating permits program revisions to Ecology's 
regulations for IEUs, specifically, revisions to WAC 173-401-530(2)(c) 
and the deletion of WAC 173-401-530(2)(d). EPA has determined that 
these 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 approving the addition of definitions for ``continuous 
compliance'' and ``intermittent compliance,'' the change to the 
definition of ``major source,'' 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 change to the time frame for the 
prompt reporting of permit deviations. Because the revisions chapter 
173-401 apply throughout the State of Washington, this approval applies 
to all State and local agencies that implement Washington's operating 
permits program. As discussed above, those agencies include

[[Page 71481]]

Ecology, EFSEC, BCAA, NWAPA, ORCAA, PSCAA, SCAPCA, SWCAA, and YRCAA.
    Consistent with EPA's proposal to approve these revisions, this 
approval does not extend to ``Indian Country,'' as defined in 18 U.S.C. 
1151, except with respect to non-trust lands within the 1873 Survey 
Area of the Puyallup Reservation.\2\ See 66 FR 42439, 42440 (August 13, 
2001); 64 FR 8247, 8250-8251 (February 19, 1999); 59 FR 42552, 42554 
(August 18, 1994).
---------------------------------------------------------------------------

    \2\ 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.
---------------------------------------------------------------------------

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 (Public Law 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 U.S.C. 272 note) do not apply.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    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 January 31, 2003. 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 CAA section 307(b)(2).

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: November 20, 2002.
Ronald A. Kreizenbeck,
Deputy Regional Administrator, Region 10.

    40 CFR part 70 is amended as follows:

PART 70--[AMENDED]

    1. The authority citation for part 70 continues to read as follows:

    Authority: 42 U.S.C. 7401, et seq.


    2. In appendix A to part 70, the entry for Washington is revised to 
read as follows:

Appendix A to Part 70--Approval Status of State and Local Operating 
Permits Programs

* * * * *

Washington

    (a) Department of Ecology (Ecology): Submitted on November 1, 1993; 
interim approval effective on December 9, 1994; revisions submitted on 
June 5, 1996, October 3, 1996, August 25, 1998, and May 24, 1999; full 
approval effective on September 12, 2001; revision submitted on 
September 26, 2002; revision approved January 2, 2003.
    (b) Energy Facility Site Evaluation Council (EFSEC): Submitted on 
November 1, 1993; interim approval effective on December 9, 1994; 
revisions submitted on June 5, 1996, October 3, 1996, August 25, 1998, 
and May 24, 1999; full approval effective on September 12, 2001; 
revision submitted on September 26, 2002; revision approved January 2, 
2003.
    (c) Benton Clean Air Authority (BCAA): Submitted on November 1, 
1993; interim approval effective on

[[Page 71482]]

December 9, 1994; revisions submitted on June 5, 1996, October 3, 1996, 
August 25, 1998, and May 24, 1999; full approval effective on September 
12, 2001; revision submitted on September 26, 2002; revision approved 
January 2, 2003.
    (d) Northwest Air Pollution Authority (NWAPA): Submitted on 
November 1, 1993; interim approval effective on December 9, 1994; 
revisions submitted on June 5, 1996, October 3, 1996, August 25, 1998, 
and May 24, 1999; full approval effective on September 12, 2001; 
revision submitted on September 26, 2002; revision approved January 2, 
2003.
    (e) Olympic Regional Clean Air Authority (ORCAA): Submitted on 
November 1, 1993; interim approval effective on December 9, 1994; 
revisions submitted on June 5, 1996, October 3, 1996, August 25, 1998, 
and May 24, 1999; full approval effective on September 12, 2001; 
revision submitted on September 26, 2002; revision approved January 2, 
2003.
    (f) Puget Sound Clean Air Agency (PSCAA): Submitted on November 1, 
1993; interim approval effective on December 9, 1994; revisions 
submitted on June 5, 1996, October 3, 1996, August 25, 1998, and May 
24, 1999; full approval effective on September 12, 2001; revision 
submitted on September 26, 2002; revision approved January 2, 2003.
    (g) Spokane County Air Pollution Control Authority (SCAPCA): 
Submitted on November 1, 1993; interim approval effective on December 
9, 1994; revisions submitted on June 5, 1996, October 3, 1996, August 
25, 1998, and May 24, 1999; full approval effective on September 12, 
2001; revision submitted on September 26, 2002; revision approved 
January 2, 2003.
    (h) Southwest Clean Air Agency (SWCAA): Submitted on November 1, 
1993; interim approval effective on December 9, 1994; revisions 
submitted on June 5, 1996, October 3, 1996, August 25, 1998, and May 
24, 1999; full approval effective on September 12, 2001; revision 
submitted on September 26, 2002; revision approved January 2, 2003.
    (i) Yakima Regional Clean Air Authority (YRCAA): Submitted on 
November 1, 1993; interim approval effective on December 9, 1994; 
revisions submitted on June 5, 1996, October 3, 1996, August 25, 1998, 
and May 24, 1999; full approval effective on September 12, 2001; 
revision submitted on September 26, 2002; revision approved January 2, 
2003.
* * * * *
[FR Doc. 02-30465 Filed 11-29-02; 8:45 am]
BILLING CODE 6560-50-P