[Federal Register Volume 68, Number 93 (Wednesday, May 14, 2003)]
[Notices]
[Pages 25875-25881]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-12029]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-7498-4]


Partial Delegation of Authority for Prevention of Significant 
Deterioration of Air Quality; Washington Department of Ecology

AGENCY: Environmental Protection Agency (EPA).

ACTION: Information notice.

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SUMMARY: The State of Washington Department of Ecology (Ecology) has 
requested partial delegation of authority to implement and enforce the 
Federal prevention of significant deterioration of air quality (PSD) 
permit program regulations, as revised in amendments published on 
December 31, 2002 (federal PSD regulations). The Clean Air Act (CAA) 
authorizes EPA to delegate its authority to implement and enforce the 
federal PSD regulations to any state that has submitted a demonstration 
that it possesses adequate implementation and enforcement resources and 
procedures. After thorough consideration of Ecology's request and other 
available information, EPA has determined that such delegation of 
authority is appropriate consistent with the conditions set forth in 
the delegation agreement reproduced below.

DATES: The delegation agreement granting authority to Ecology for the 
Federal PSD program is effective March 28, 2003.

ADDRESSES: Copies of information relevant to the partial delegation are 
available for inspection during normal business hours at the following 
location: EPA, Region 10, Office of Air Quality (OAQ-107), 1200 Sixth 
Avenue, Seattle, Washington 98101.

FOR FURTHER INFORMATION CONTACT: Dan Meyer, EPA, Region 10, Office of 
Air Quality, (206) 553-4150.

SUPPLEMENTARY INFORMATION: 

I. Background

    EPA granted Ecology full delegation to implement and enforce the 
federal PSD regulations in a delegation agreement dated February 7, 
2002. The PSD program covers any new construction or any major 
modification of a major stationary air emission source in an area which 
has air quality better than the national ambient air quality standards. 
The program requires the issuance of permits prior to construction or 
modification of certain sources. EPA recently promulgated revisions to 
the federal PSD regulations found in 40 CFR 52.21. See 67 FR 80186 
(December 31, 2002). In general, these changes affect the applicability 
of the federal PSD program to modifications to existing major 
stationary sources.
    Ecology has requested authority to continue to implement the 
federal PSD regulations, as published on December 31, 2002, to the 
extent possible while Ecology determines how to revise the State PSD 
regulations to meet the new federal requirements. EPA has reviewed the 
States' current statutory and regulatory authority and has determined 
that Ecology has authority to implement and enforce the federal PSD 
regulations, as published on December 31, 2002, except for applications 
for PAL

[[Page 25876]]

increases under 40 CFR 52.21(aa)(11), subject to the conditions set 
forth in the Agreement for Partial Delegation of the Federal Prevention 
of Significant Deterioration (PSD) Program by the United States 
Environmental Protection Agency, Region 10 to the State of Washington 
Department of Ecology dated March 28, 2003.

II. Terms of Delegation of Authority

    A copy of the Delegation Agreement can be viewed or downloaded from 
the Internet at http://www.ecy.wa.gov/programs/air/psd/PSD_EPA_Final03.pdf. The Delegation of the federal PSD regulations to Ecology 
is subject to the conditions set forth in the following agreement:

Agreement for Partial Delegation of the Federal Prevention of 
Significant Deterioration (PSD) Program by the United State 
Environmental Protection Agency, Region 10 to the State of Washington 
Department of Ecology

    Through this agreement, the Washington State Department of 
Ecology (Ecology) and the Environmental Protection Agency (EPA) 
establish the legal and procedural bases for Ecology to conduct new 
source review and to implement and enforce portions of the federal 
PSD regulations found in 40 CFR 52.21 (effective March 3, 2003).

I. Introduction

    Ecology has adopted by reference, with certain minor changes, 
the federal PSD regulations found in 40 CFR 52.21, as in effect on 
July 1, 2000. See WAC 173-400-117, -141, 113 and -171 (effective 
September 15, 2001). The provisions of WAC 173-400-117, -141, and -
171 as in effect on September 15, 2001, shall hereafter be referred 
to as the ``State PSD regulations.''
    Based on those changes, EPA granted Ecology full delegation to 
implement and enforce the federal PSD regulations in a delegation 
agreement dated February 7, 2002.
    EPA recently promulgated revisions to the federal PSD 
regulations found in 40 CFR 52.21. See 67 FR 80186, (December 31, 
2002). In general, these changes affect the applicability of the 
federal PSD program to modifications to existing major stationary 
sources. The provisions of 40 CFR 52.21, as revised on March 3, 2003 
shall hereafter be referred to as the ``federal PSD regulations.''
    Ecology and EPA desire to continue to have Ecology implement and 
enforce the federal PSD regulations to the extent possible while 
Ecology determines how to revise the State PSD regulations to meet 
the new federal requirements. Accordingly, EPA and Ecology are 
entering into this partial Delegation Agreement.
    As part of the transition process for implementing the new 
provisions, Ecology and EPA intend to allow permit applicants to 
withdraw any PSD permit applications submitted prior to March 3, 
2003, and currently under review to afford permit applicants the 
opportunity to re-evaluate their projects in light of the revised 
federal PSD requirements if they so choose.

II. Legal Authority

    A. Pursuant to 40 CFR 52.21(u), EPA may delegate to a State full 
or partial responsibility for conducting new source review pursuant 
to the federal PSD regulations found in 40 CFR 52.21.
    B. As discussed above, Ecology has adopted by reference, with 
certain minor changes, the federal PSD regulations found in 40 CFR 
52.21, as in effect on July 1, 2000. See WAC 173-400-117, -141, and 
-171.
    C. EPA has determined that Chapter 43.05 of the Revised Code of 
Washington (RCW), often referred to as ``House Bill 1010,'' 
conflicts with the delegation requirements of 40 CFR 52.21(u). Based 
on this determination, Ecology has determined that Chapter 43.05 RCW 
does not apply to permit to construct requirements of Chapter 173-
400 WAC, including the State PSD regulations.
    D. The Ecology Division of the Washington Attorney General's 
Office has issued an opinion \1\ stating that the provisions of RCW 
70.94.035, ``Air Technical Assistance Visits by Ecology,'' do not 
prevent enforcement actions, but only require Ecology to wait until 
the end of the correction period to determine whether enforcement 
action is appropriate. Based on that opinion letter, EPA has 
determined that RCW 70.94.035 does not impermissibly interfere with 
Washington's enforcement authority. See 59 FR 42552 (August 18, 
1994) (proposed interim approval of Washington's title V program).
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    \1\ Letter from Mary Sue Wilson, Assistant Attorney General, to 
Chuck Clarke, Regional Administrator, dated June 7, 1994, regarding 
Supplement to October 27, 1993 and December 30, 1993 Attorney 
General Opinion Letters for Washington State Department of Ecology.
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    E. Ecology and EPA agree that requirements issued in PSD permits 
under the authority of WAC 173-400-110, -113 and -141 are federally 
enforceable requirements of the State Implementation Plan even in 
cases where a federal PSD permit is not required under 40 CFR 52.21. 
For purposes of incorporating all applicable requirements into the 
Title V permit, the components of the PSD permit applicable to State 
PSD requirements remains federally enforceable as a component of the 
SIP notice of construction approval.

III. Scope of Delegation

    A. Pursuant to 40 CFR 52.21(u), EPA hereby delegates to Ecology 
partial responsibility for conducting federal new source review and 
for implementing and enforcing the federal PSD regulations for all 
sources located in the State of Washington as follows, subject to 
the terms and conditions of this Delegation Agreement:
    1. Ecology has full delegation to conduct federal new source 
review and to implement and enforce the federal PSD regulations for 
all new major stationary sources.
    2. Ecology has partial delegation to conduct federal new source 
review and to implement and enforce the federal PSD regulations for 
all physical or operational changes to existing stationary sources 
\2\ as follows:
    a. Except for applications for PAL increases under 40 CFR 
52.21(aa)(11), Ecology is delegated authority to receive all permit 
applications, requests for applicability determination, 
notifications, reports, notices and other documents required under 
or that relate to the federal PSD regulations.
    b. Ecology is delegated authority to process, issue, and enforce 
PSD permits for any physical or operational change to an existing 
stationary source that Ecology determines is subject to the State 
PSD regulations and the federal PSD regulations, provided, however, 
that Ecology will note in the permit record any instance where 
Ecology determines that an emission unit or pollutant is subject to 
the State PSD regulations but not the federal PSD regulations.
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    \2\ The reference to ``physical or operational changes to 
existing stationary sources'' covers both (a) any physical or 
operational change to an existing major stationary source and (b) 
any physical or operational change that would occur at a stationary 
source not otherwise qualifying under 40 CFR 52.21(b)(1) as a major 
stationary source if the change would constitute a major stationary 
source by itself.
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    c. Ecology is delegated authority to conduct applicability 
determinations that relate to the applicability of the federal PSD 
regulations to physical or operational changes to existing 
stationary sources, provided, however, that the following additional 
conditions apply in the circumstances described below. For purposes 
of this Delegation Agreement, an applicability determination 
includes a written determination in a preliminary decision or 
permit.
    (i) Determining the Emissions Increase
    (A) Applicability Test for Physical or Operational Changes to 
Existing Electric Utility Steam Generating Units (EUSGUs) and 
Construction of Replacement EUSGUs.
    (I) Determination--Applicability. Ecology is delegated the 
authority to act upon requests from sources to determine whether a 
significant emissions increase will result from a physical or 
operational change to an EUSGU or the construction of a replacement 
EUSGU, and to determine whether a significant net emissions increase 
will occur at the stationary source. Upon issuance of the 
determination, Ecology will provide to EPA and the Title V 
permitting authority a copy of Ecology's determination along with a 
copy of the request.
    (II) Determination--Baseline Actual Emissions \3\. Ecology is 
delegated the authority to act upon requests from sources to use a 
different time period than that specified in 40 CFR 52.21(b)(48)(i) 
to calculate baseline actual emissions. Upon issuance of the 
determination, Ecology will provide to EPA and the Title V 
permitting authority a copy of the determination along with a copy 
of the request.
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    \3\ Sources are required to obtain this determination from 
Ecology prior to beginning actual construction.
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    (III) Reporting--Projected Actual Emissions. Ecology is 
delegated the authority to receive from sources the information 
required under 40 CFR 52.21(r)(6)(ii) to calculate an EUSGU's 
projected actual emissions at a stationary source.\4\ Ecology

[[Page 25877]]

will forward a copy of the information to EPA and the Title V 
permitting authority upon receipt of the information.
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    \4\ EUSGUs opting to use the actual-to-projected-actual 
applicability test are required to submit this information to 
Ecology prior to beginning actual construction.
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    (IV) Reporting--Actual Annual Emissions. Ecology is delegated 
the authority to receive from sources the annual emissions report 
required under 40 CFR 52.21(r)(6)(iv) for an EUSGU at a stationary 
source.\5\ Ecology will forward a copy of any emission report to EPA 
and the Title V permitting authority upon receipt of the report.
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    \5\ EUSGUs opting to utilize the actual-to-projected-actual 
applicability test are required to submit this report to Ecology 
within 60 days after the end of each year during which records must 
be generated under 40 CFR 52.21(r)(6)(iii).
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    (B) Applicability Test for Physical or Operational Changes to 
Existing Units (non-EUSGUs) and Construction of Replacement Units 
(non-EUSGUs).\6\
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    \6\ For a discussion regarding the treatment of replacement 
units, please refer to 67 FR 80194.
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    (I) Determination--Applicability. Ecology is delegated the 
authority to act upon requests from sources to determine whether a 
significant emissions increase will result from a physical or 
operational change to an emissions unit or the construction of a 
replacement emissions unit, and to determine whether a significant 
net emissions increase will occur at the stationary source. Upon 
issuance of the determination, Ecology will provide to EPA and the 
Title V permitting authority a copy of the determination along with 
a copy of the request.
    (II) Reporting--Actual Annual Emissions. Ecology is delegated 
the authority to receive from sources the annual emissions report 
under 40 CFR 52.21(r)(6)(v) for an emissions unit at a stationary 
source.\7\ Ecology will forward a copy of the emissions report to 
EPA and the Title V permitting authority upon receipt of the report.
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    \7\ Non-EUSGUs opting to utilize the actual-to-future-actual 
applicability test are required to submit this report to Ecology if 
annual emissions exceed baseline actual emissions by a significant 
amount and if such emissions differ from the preconstruction 
projection. The report is to be submitted within 60 days after the 
end of each year during which records must be generated under 40 CFR 
52.21(r)(6)(iii).
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    (ii) Clean Units
    (A) Clean Unit I--Units which Automatically Qualify as a Clean 
Unit.
    (I) Original Designation. The provisions of 40 CFR 52.21(x) for 
automatic Clean Unit designation are self-implementing for emissions 
units that have been issued a BACT determination in a federal or 
SIP-approved major new source review permit within the last 10 
years.
    (a) Coordination with Title V Permitting Authority. Ecology will 
coordinate with the Title V permitting authority to ensure that the 
terms and conditions required by 40 CFR 52.21(x)(6)(i)-(vi) related 
to the Clean Unit are included in the Title V permit for the source.
    (b) Reporting. Ecology is delegated the authority to receive 
from sources the notices required under 40 CFR 52.21(x)(6)(ii) and 
(iii) specifying the effective date and expiration date, 
respectively, of the Clean Unit designation.\8\ Ecology will forward 
a copy of the notices to EPA and the Title V permitting authority 
upon receipt of the notices.
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    \8\ Sources are required to submit notices to Ecology only if 
the effective date and expiration date are not known when the Clean 
Unit designation is recorded in the Title V permit.
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    (II) Re-designation. Ecology is delegated the authority to act 
upon requests from sources to re-designate an emissions unit as a 
Clean Unit pursuant to 40 CFR 52.21(x)(3)(iii) or 40 CFR 
52.21(y)(3)(iv).\9\ Upon issuance of the final permit or order, 
Ecology will provide to EPA and the Title V permitting authority a 
copy of the final permit or order along with a copy of the request.
    (a) Coordination with Title V Permitting Authority. Ecology will 
coordinate with the Title V permitting authority to ensure that the 
terms and conditions required under 40 CFR 52.21(x)(6)(i)-(vi) or 40 
CFR 52.21(y)(8)(i)-(vi), as applicable, related to the Clean Unit 
are included in the Title V permit for the source.
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    \9\ Sources have the option of requesting Clean Status re-
designation pursuant to the requirements of 40 CFR 52.21(x)(3)(iii) 
or 40 CFR 52.21(y)(3)(iv). For requests seeking approval under 40 
CFR 52.21(x)(3)(iii), Ecology intends to use its authority under WAC 
173-400-141. For requests seeking approval under 40 CFR 
52.21(y)(3)(iv), Ecology intends to use its authority under WAC 173-
400-091.
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    (b) Reporting. Ecology is delegated the authority to receive 
from sources the notices required under 40 CFR 52.21(x)(6)(ii) and 
(iii) or 40 CFR 52.21(y)(8)(ii) and (iii), as applicable, specifying 
the effective date and expiration date, respectively, of the Clean 
Unit designation.\10\ Ecology will forward a copy of the notices to 
EPA and the Title V permitting authority upon receipt of the 
notices.
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    \10\ Sources are required to submit notices to Ecology only if 
the effective date and expiration date are not known when the Clean 
Unit designation is recorded in the Title V permit.
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    (B) Clean Unit II--Units which Do Not Automatically Qualify as a 
Clean Unit.
    (I) Original Designation. Ecology is delegated the authority to 
act upon requests from sources to designate an emissions unit as a 
Clean Unit pursuant to 40 CFR 52.21(y)(3).\11\ Upon issuance of the 
final permit or order, Ecology will provide to EPA and the Title V 
permitting authority a copy of the permit or order along with a copy 
of the request.
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    \11\ For requests seeking approval under 40 CFR 52.21(y)(3), 
Ecology intends to use its authority under WAC 173-400-091.
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    (a) Coordination with Title V Permitting Authority. Ecology will 
coordinate with the Title V permitting authority to ensure that the 
terms and conditions required by 40 CFR 52.21(y)(8)(i)-(vi) related 
to the Clean Unit are included in the Title V permit for the source.
    (b) Reporting. Ecology is delegated the authority to receive 
from sources the notices required under 40 CFR 52.21(y)(8)(ii) and 
(iii) specifying the effective date and expiration date, 
respectively, of the Clean Unit designation.\12\ Ecology will 
forward a copy of the notices to EPA and the Title V permitting 
authority upon receipt of the notices.
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    \12\ Sources are required to submit notices to Ecology only if 
the effective date and expiration date are not known when the Clean 
Unit designation is recorded in the Title V permit.
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    (II) Re-designation. Ecology is delegated the authority to act 
upon requests from sources to re-designate an emissions unit as a 
Clean Unit pursuant to 40 CFR 52.21(y)(3)(iv).\13\ Upon issuance of 
the final permit or order, Ecology will provide to EPA and the Title 
V permitting authority a copy of the permit or order along with a 
copy of the request.
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    \13\ For requests seeking approval under 40 CFR 52.21(y)(3), 
Ecology intends to use its authority under WAC 173-400-091.
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    (a) Coordination with Title V Permitting Authority. Ecology will 
coordinate with the Title V permitting authority to ensure that the 
terms and conditions required under 40 CFR 52.21(y)(8)(i)-(vi) 
related to the Clean Unit are included in the Title V permit for the 
source.
    (b) Reporting. Ecology is delegated the authority to receive 
from sources the notices required under 40 CFR 52.21(y)(8)(ii) and 
(iii) specifying the effective date and expiration date, 
respectively, of the Clean Unit designation.\14\ Ecology will 
forward a copy of the notices to EPA and the Title V permitting 
authority upon receipt of the notices.
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    \14\ Sources are required to submit notices to Ecology only if 
the effective date and expiration date are not known when the Clean 
Unit designation is recorded in the Title V permit.
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    (iii) Pollution Control Projects
    (A) PCP I. Projects presumed to be environmentally beneficial.
    (I) The provisions of 40 CFR 52.21(z) for projects listed as 
PCPs under 40 CFR 52.21(b)(32)(i)-(vi) are self-implementing. 
Ecology is delegated authority to receive from sources the notices 
required by 40 CFR 52.21(z)(1) and to request additional information 
necessary to evaluate the suitability of the project for the PCP 
exemption as provided in 40 CFR 52.21(z)(4). Ecology will forward a 
copy of the notice to EPA and the Title V permitting authority upon 
receipt of the notice.
    (II) Coordination with Title V Permitting Authority. Ecology 
will coordinate with the Title V permitting authority to ensure that 
the terms and conditions required under 40 CFR 52.21(z)(6) are 
included in the Title V permit for the source.
    (B) PCP II. Projects not presumed to be environmentally 
beneficial.
    (I) For projects not listed as PCPs under 40 CFR 
52.21(b)(32)(i)-(vi), Ecology is delegated the authority to act upon 
requests from sources for approval to use the PCP exclusion as 
provided in 40 CFR 52.21(z)(1) and (5).\15\ Upon issuance of the 
final permit or order, Ecology will provide to EPA and the Title V 
permitting authority a copy of the permit or order along with a copy 
of the request.
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    \15\ For requests seeking approval under 40 CFR 52.21(z)(5), 
Ecology intends to use its authority under WAC 173-400-091 and -110 
as appropriate.
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    (II) Coordination with Title V Permitting Authority. Ecology 
will coordinate with the Title V permitting authority to ensure that 
the terms and conditions required under 40 CFR 52.21(z)(6) are 
included in the Title V permit for the source.

[[Page 25878]]

    (iv) Plantwide Applicability Limitations
    (A) Ecology PALs.
    (I) Ecology is delegated the authority to act upon an 
application from a source for a PAL pursuant to 40 CFR 
52.21(aa)(1)\16\.
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    \16\ For requests seeking PALs, Ecology intends to use its 
authority under WAC 173-400-091, -110 and -141 as appropriate.
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    (a) Upon issuance of the final permit or order, Ecology will 
provide to EPA and the Title V permitting authority a copy of the 
permit along with a copy of the request.
    (b) Coordination with Title V Permitting Authority. Ecology will 
coordinate with the Title V permitting authority to ensure that the 
terms and conditions required in the PAL permit or order are 
included in the Title V permit for the source.
    (II) Ecology is delegated the authority to act upon an 
application from a source to renew a PAL pursuant to 40 CFR 
52.21(aa)(10).\17\
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    \17\ For requests seeking PAL renewals, Ecology intends to use 
its authority under WAC 173-400-091, -110 and -141 as appropriate.
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    (a) Upon issuance of the final permit or order, Ecology will 
provide to EPA and the Title V permitting authority a copy of the 
permit or order along with a copy of the request.
    (b) Coordination with Title V Permitting Authority. Ecology will 
coordinate with the Title V permitting authority to ensure that the 
terms and conditions required in the PAL permit or order are 
included in the Title V permit for the source.
    (III) Ecology is delegated the authority to reopen a PAL 
pursuant to 40 CFR 52.21(aa)(8).\18\
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    \18\ Except for those PAL reopenings under 40 CFR 
52.21(aa)(8)(ii)(a)(1), Ecology intends to reopen PALs using its 
authority under WAC 173-400-091 and -110 as appropriate.
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    (a) Upon issuance of the final permit or order, Ecology will 
provide to EPA and the Title V permitting authority a copy of the 
permit or order.
    (b) Coordination with Title V Permitting Authority. Ecology will 
coordinate with the Title V permitting authority to ensure that the 
terms and conditions required in the PAL permit or order are 
included in the Title V permit for the source.
    (B) EPA PALs.
    (I) Ecology is not delegated the authority to act upon an 
application from a source to increase a PAL pursuant to 40 CFR 
52.21(aa)(11). Applications for PAL increases shall be submitted 
directly to EPA and EPA shall approve PAL increases through the 
issuance of a permit under the federal PSD regulations.
    (a) Upon issuance of the final permit, EPA will provide to 
Ecology and the Title V permitting authority a copy of the permit 
along with a copy of the request.
    (b) Coordination with Title V Permitting Authority. EPA will 
coordinate with the Title V permitting authority to ensure that the 
terms and conditions required in the PAL permit are included in the 
Title V permit for the source.
    3. Notwithstanding the provisions of subjection III.A.2., 
Ecology is not delegated authority for any change to a source that 
is a major modification to an existing stationary source under the 
federal PSD regulations but not under the State PSD regulations. All 
permit applications, notices, and reports relating to such changes 
received by Ecology shall be promptly forwarded to EPA or the 
applicant shall be directed to submit the application materials 
directly to EPA.
    4. The parties acknowledge that under certain circumstances the 
State PSD regulations and federal PSD regulations have different 
applicability criteria and that obtaining an exemption under one set 
of PSD regulations does not relieve a facility from compliance with 
the other PSD regulations.
    B. Ecology's delegation to conduct new source review and to 
implement and enforce the federal PSD regulations under this 
Delegation Agreement does not extend to sources or activities 
located in Indian Country, as defined in 18 U.S.C. 1151. Consistent 
with previous federal program approvals or delegations, EPA will 
continue to implement the federal PSD program in Indian Country in 
Washington because Ecology did not adequately demonstrate its 
authority over sources and activities located within the exterior 
boundaries of Indian reservations and in other areas of Indian 
Country. The one exception is within the exterior boundaries of the 
Puyallup Indian Reservation, also known as the 1873 Survey Area. 
Under the Puyallup Tribe of Indians Settlement Act of 1989, 25 
U.S.C. 1773, Congress explicitly provided State and local agencies 
in Washington authority over activities on non-trust land within the 
1873 Survey Area. After consulting with the Puyallup Tribe of 
Indians, EPA's delegation in this agreement applies to sources and 
activities on non-trust lands within the 1873 Survey Area. 
Therefore, Ecology will implement and enforce the federal PSD 
requirements on these non-trust lands of the 1873 Survey Area as 
provided in this Delegation Agreement.
    C. Ecology's delegation to conduct new source review and to 
implement and enforce the federal PSD regulations under this 
Delegation Agreement does not extend to sources or activities under 
the jurisdiction of the State of Washington Energy Facilities Site 
Evaluation Council (EFSEC).
    D. The EPA Administrator has delegated to the Director of the 
Region 10 Office of Air Quality, the authority to delegate the 
federal PSD regulations to any State or local agency. The State or 
local agency that receives delegation from EPA Region 10 does not 
have the authority under the federal Clean Air Act to further 
delegate the federal PSD regulations.

IV. Requirements

    A. The responsibility for conducting new source review for all 
regulated sources as provided by this Delegation Agreement, 
including those under the jurisdiction of the Industrial Section, 
the Nuclear and Mixed Waste Program, and local air authorities in 
the State of Washington, rests with Ecology's Air Quality Program. 
EPA is relying on the technical and programmatic expertise of the 
Technical, Information, and Engineering Section (TIES) of Ecology's 
Air Quality Program in the implementation of this Delegation 
Agreement on Ecology's behalf. The processing, issuance, and 
enforcement of PSD permits, Clean Unit Designations, Pollution 
Control Project Approvals, and PALs shall be conducted in 
consultation and coordination with TIES. All applicability 
determinations under this Delegation Agreement will be made by the 
Manager of TIES or a higher level manager within Ecology. In no 
event will an applicability determination be made at a level lower 
than the Manager of TIES. Ecology will ensure that other Ecology 
offices and local air authorities are aware that all PSD 
applicability determinations under this Delegation Agreement must be 
made by the Manager of TIES or a higher level manager within 
Ecology.
    B. Ecology will ensure that there are adequate resources and 
trained personnel within the TIES to implement an effective PSD 
permit program. As requested, EPA will provide technical assistance 
related to the federal PSD requirements, including without 
limitation, PSD applicability determinations, Best Available Control 
Technology (BACT) determinations, air quality monitoring network 
design, and modeling procedures. EPA will provide PSD training for 
Ecology staff to meet needs identified by EPA or Ecology.
    C. Where the rules or policies of Ecology are more stringent 
than the federal PSD program, Ecology may elect to include such 
requirements in the PSD permit along with the EPA requirements.
    D. If both a state or local regulation and a federal regulation 
apply to the same source, both must be complied with, regardless of 
whether one is more stringent than the other, subject to the 
requirements of section 116 of the Clean Air Act.
    E. Ecology will follow all PSD policy, guidance, and 
determinations issued by EPA for implementing the federal PSD 
program as provided in this Delegation Agreement. EPA will provide 
Ecology with copies of EPA policies, guidance, and determinations 
through the Region 7 NSR database and/or hard copies where 
appropriate. Where no current EPA policy or guidance clearly covers 
a specific situation, Ecology shall consult with the EPA Office of 
Air Quality on its proposed interpretation of the EPA regulations.
    F. Ecology will at no time grant a waiver to the requirements of 
40 CFR 52.21 or to the requirements of an issued PSD permit.
    G. Ecology shall consult with the appropriate State and local 
agency primarily responsible for managing land use as provided in 40 
CFR 52.21(u)(2)(i) prior to making any preliminary or final 
determination under this Delegation Agreement.
    H. In order to assist EPA in carrying out its responsibilities 
under Section 7 of the Endangered Species Act (ESA), 16 U.S.C. 1531 
et seq., and 50 CFR part 402, subpart B (``Consultation 
Procedures''), and with Section 305(b)(2) of the Magnuson-Stevens 
Fishery and Conservation Act (``Magnuson-Stevens Act''), 16 U.S.C. 
1801 et seq., and 50 CFR part 600, subpart K (``EFH Coordination, 
Consultation, and Recommendations''), for federal PSD permits, 
regarding essential fish habitat, Ecology shall:
    1. Within 5 working days of receipt of a complete PSD permit 
application, notify the

[[Page 25879]]

U.S. Fish and Wildlife Service (FWS) and/or the National Marine 
Fisheries Service (NMFS), as appropriate, of the permit application, 
and to provide a copy of the permit application if requested.
    2. Notify applicants of the potential need for consultation 
between EPA and FWS and/or NMFS if the project may affect an 
endangered species, or if the project may affect essential fish 
habitat.
    3. Refrain from issuing a final PSD permit until EPA has 
notified Ecology that EPA has satisfied its obligations, if any, 
under the ESA and/or the Magnuson-Stevens Act.

V. Permit Issuance, Modification, and Appeals

    A. All preliminary and final determinations issued by Ecology 
under this Delegation Agreement shall indicate that an appeal to the 
EPA Administrator is available pursuant to 40 CFR part 124.
    B. The permit provisions in 40 CFR 124.19 shall apply to all 
appeals to the EPA Administrator on PSD permits issued by Ecology 
under this Delegation Agreement, including those permits co-signed 
by EPA. For purposes of implementing the Federal permit appeal 
provisions under this delegation, if there is a public comment 
requesting a change in a preliminary determination or proposed 
permit condition, the final permit issued by Ecology is required to 
state that for federal PSD purposes and in accordance with 40 CFR 
124.15 and 124.19:
    1. The effective date of the permit is 30 days after service of 
notice to the applicant and commentors of the final decision to 
issue, modify, or revoke and reissue the permit, unless review is 
requested on the permit under 40 CFR 124.19 within the 30 day 
period.
    2. If an appeal is made to the EPA Administrator, the effective 
date of the permit is suspended until such time as the appeal is 
resolved.
    C. A PSD permit (or a portion of a PSD permit) for a change to a 
facility that is a major modification under the State PSD 
regulations but not the federal PSD regulations shall be enforceable 
under State law only and shall not be appealable to the EPA 
Environmental Appeals Board.
    D. Modifications to existing PSD permits, except for 
administrative amendments, shall be processed in accordance with all 
of the substantive and procedural requirements applicable to new 
permits.
    E. Failure by Ecology to comply with the requirements of 40 CFR 
part 124 related to PSD permits and this Section V. of the 
Delegation Agreement shall render the subject permit invalid for 
federal PSD purposes.

VI. Enforcement

    A. Ecology or the local air authority with jurisdiction over the 
source will have the primary responsibility for enforcing the 
federal PSD regulations for sources subject to this Delegation 
Agreement, provided, however, that:
    1. In the case of any requirement of the federal PSD regulations 
that is not also a requirement of the State PSD regulations, EPA 
retains primary enforcement authority.
    2. Ecology shall have the responsibility under this Delegation 
Agreement to enforce the federal PSD regulations in the event that a 
local air authority does not.
    3. In all cases, EPA retains authority pursuant to section 113 
of the Clean Air Act with respect to sources that are subject to the 
federal PSD requirements, including federal PSD permits issued by 
Ecology.
    B. In delegated programs, the role of the State and local 
agencies is that of primary enforcer or ``front line'' agency in 
program implementation. This includes helping to define EPA's role 
in the regulated community for a given program. EPA's principal role 
is ``back up'' for the State/local program. However, EPA will 
initiate an enforcement action, as appropriate, under the following 
circumstances:
    1. At the State or local air agency's request;
    2. If a State or local air agency action is determined to be 
inadequate, or the State/local agency fails to carry out action in a 
timely or appropriate manner (in this situation, the parties will 
adhere to the ``no surprises'' principle and will follow the 
conflict resolution process described in Section IX of the 
Washington State Compliance Assurance Agreement for Air Programs 
(October 1999)); and/or
    3. As part of EPA's role established in the collaborative 
planning process, which includes those situations where national, 
regional, or sector initiatives warrant an EPA lead.
    C. PSD enforcement actions under this Delegation Agreement will 
be undertaken by qualified inspectors or trained enforcement staff 
in Ecology's Regional Offices, the Ecology's Industrial Section, 
Ecology's Air Quality Program Headquarters, Ecology's Nuclear and 
Mixed Waste Program, or local air authorities.
    D. Enforcement of the federal PSD regulations is subject to the 
Washington State Compliance Assurance Agreement for Air Programs 
(October 1999), signed by both the State and local agencies. This 
clearly defines roles and responsibilities, including timely and 
appropriate enforcement response and the maintenance of the 
Aerometric Information Retrieval System/Aerometric Facility 
Subsystem (AIRS/AFS).

VII. EPA and Ecology Communications

    A. Ecology shall submit to EPA copies of the following 
documents, within the timeframes indicated, for sources or 
activities subject to this Delegation Agreement:

------------------------------------------------------------------------
             Action                Submittal to EPA        Timeframe
------------------------------------------------------------------------
Written applicability             Copy of request     Within five
 determination that a proposed     and final           working days
 source or activity is subject     determination.      after signature.
 to or exempt from federal PSD
 regulations.
Receipt of PSD permit             Copy of             Within five
 application \*\.                  application and     working days
                                   cover letter.       after receipt.
Completeness determination or     Copy of letter to   Within five
 letter of deficiencies \*\.       applicant.          working days
                                                       after signature.
Transmittal to Federal Land       Copy of letter....  Within five
 Manager (FLM) of PSD                                  working days
 application \*\.                                      after signature.
Receipt of comments from FLM \*\  Copy of comment     Within five
                                   letter.             working days of
                                                       receipt.
Preliminary determination,        Copy of             Within five
 proposed PSD permit, public       preliminary         working days
 notice.                           determination,      after completion
                                   proposed PSD        of preliminary
                                   permit, and         determination.
                                   public notice.
Public notice of hearing (see     Copy of notice....  Prior to
 52.21(u)(2)(ii)) \*\.                                 publication.
Receipt of comments from          Copy of public      Within five
 public\*\.                        comment letter(s).  working days of
                                                       the close of the
                                                       public comment
                                                       period.
Final determination, PSD permit   Copy of final       Within five
 and transmittal letter.           determination PSD   working days
                                   permit and          after final
                                   transmittal         signature on PSD
                                   letter.             permit.
BACT determination submittal to   Electronic or       Within 20 working
 RACT/BACT/LAER Clearinghouse.     paper submittal     days of final
                                   of required         signature on PSD
                                   information.        permit.
Receipt of EUSGU projected        Copy of             Within five
 actual emissions information      information.        working days
 (see Section                                          after receipt.
 III.A.2(i)(A)(III)).
Receipt of EUSGU actual annual    Copy of report....  Within five
 emissions report (see Section                         working days
 III.A.2 (i)(A)(IV)).                                  after receipt.
Receipt of non-EUSGU actual       Copy of report....  Within five
 annual emissions report (see                          working days
 Section III.A.2 (i)(B)(II)).                          after receipt.
Issuance of Clean Unit I Re-      Copy of request     Within five
 designation through WAC 173-400-  and final action.   working days
 141 (see Section III.A.2                              after issuance.
 (ii)(A)(II)).

[[Page 25880]]

 
Issuance of Clean Unit II         Copy of request     Within five
 Designation or Re-designation     and final action.   working days
 (see Sections III.A.2                                 after issuance.
 (ii)(A)(II), III.A.2(ii)(B)(I),
 III.A.2(ii)(B)(II)).
Receipt of notices for effective  Copy of notice....  Within five
 dates and expiration dates for                        working days
 Clean Unit I & II designation                         after receipt.
 and re-designations (see
 Sections III.A.2(ii)(A)(I)(b),
 III.A.2(ii)(A)(II)(b),
 III.A.2(ii)(B)(I)(b),
 III.A.2(ii)(B)(II)(b).
Receipt of PCP I exclusion        Copy of notice....  Within five
 notice (see Section III.A.2                           working days
 (iii)(A)(I)).                                         after receipt.
Issuance of PCP II exclusion      Copy request and    Within five
 (see Section III.A.2              final action.       working days
 (iii)(B)(I)).                                         after issuance
Issuance of PAL permit (see       Copy of request     Within five
 Section III.A.2 (iv)(A)(I)).      and final action.   working days
                                                       after issuance.
Issuance of PAL permit (renewal)  Copy of request     Within five
 (see Section III.A.2              and final action.   working days
 (iv)(A)(II)).                                         after issuance.
Issuance of PAL permit            Copy of final       Within five
 (reopening) (see Section          action.             working days
 III.A.2 (iv)(A)(III)).                                after issuance.
------------------------------------------------------------------------
\*\ Only required when one or more pollutants are subject to federal PSD
  requirements.

    B. EPA shall submit to Ecology copies of the following documents 
within the timeframes indicated.

------------------------------------------------------------------------
                                     Submittal to
           EPA action                   Ecology            Timeframe
------------------------------------------------------------------------
Issuance of PAL permit            Copy of PAL permit  Within five
 (increase) under 40 CFR                               working days
 52.21(aa)(11)(see Section                             after issuance.
 III.A.2 (iv)(B)(I)).
------------------------------------------------------------------------

    C. Ecology and EPA should communicate sufficiently to guarantee 
that each is fully informed and current regarding interpretation of 
federal PSD regulations (including any unique questions about PSD 
applicability). Any records or reports relating to PSD permitting or 
compliance with PSD requirements that are provided to or otherwise 
obtained by Ecology and are not identified in the Table in Section 
VII.A. above should be made available to EPA upon request.
    D. Ecology will work with owners and operators of sources and 
activities subject to the federal PSD regulations to ensure all 
required information is submitted to Ecology. Ecology will ensure 
that the information set forth in paragraphs VII. A. and B. is 
provided to EPA as set forth in those paragraphs and that all other 
information is submitted to EPA upon request.
    E. Ecology will ensure that all relevant source information, 
notifications and reports are entered into the EPA AIRS/AFS national 
database system in order to meet its record keeping and reporting 
requirements. In addition to the National Minimal Data Requirements 
(MDRs) (attached), Ecology shall enter the following information or 
activities:
    1. The Air Program Code for PSD;
    2. The date the PSD permit is issued or modified;
    3. The final effective date of the PSD permit (or modified 
permit);
    4. The date that the new source or modification begins 
construction; and
    5. The date that the new source or modification begins 
operation.
    F. Correspondence from EPA to Ecology will be sent to: Alan 
Newman, Senior Engineer, Department of Ecology, Air Quality Program, 
PO Box 47600, Olympia, WA 98504-7600.
    Correspondence from Ecology to EPA will be sent to: Dan Meyer, 
Office of Air Quality, Environmental Protection Agency, Region 10, 
OAQ-107, 1200 Sixth Avenue, Seattle, WA 98101.

VIII. Future EPA Regulation Revisions

    A. Ecology's delegation to conduct new source review and to 
implement and enforce the federal PSD regulations does not extend to 
revisions to 40 CFR 52.21 that occur, or have occurred, after March 
3, 2003.
    B. A new request for delegation will be required for any changes 
to 40 CFR Part 52.21 promulgated after March 3, 2003. Implementation 
and enforcement of new or revised requirements after March 3, 2003 
will remain the sole responsibility of EPA until this Delegation 
Agreement is revised.

IX. Administrative

    A. This delegation supersedes the previously delegated authority 
contained in the September 30, 1983 letter to Ecology from the EPA 
Regional Administrator and the February 7, 2002 and June 4, 1992 
Agreements for Delegation.
    B. If, after consultation with Ecology, EPA makes any of the 
following determinations, this delegation may be revoked in whole or 
in part. As part of the consultation, the parties will adhere to the 
``no surprises'' principle and will follow the conflict resolution 
process described in Section IX of the Washington State Compliance 
Assurance Agreement for Air Programs (October 1999). Any such 
revocation shall be effective as of the date specified in a Notice 
of Revocation.
    1. Ecology's legal authority, rules and regulations, and/or 
procedures for implementing or enforcing the federal PSD 
requirements as provided in this Delegation Agreement are 
inadequate;
    2. Ecology is not adequately implementing or enforcing the 
federal PSD program; or
    3. Ecology has not implemented the requirements or guidance with 
respect to a specific permit in accordance with the terms and 
conditions of this delegation, the requirements of 40 CFR 52.21, 40 
CFR 124, or the Clean Air Act.
    C. In the event that Ecology is unwilling or unable to implement 
or enforce the federal PSD regulations as provided in this 
Delegation Agreement with respect to a source or activity subject to 
the federal PSD regulations, Ecology will immediately notify the 
Director of the Office of Air Quality. Failure to notify the 
Director of the Office of Air Quality does not preclude EPA from 
exercising its enforcement authority.
    D. EPA may review the state PSD permitting program as part of 
the review of the Performance Partnership Agreement (PPA) or any 
other appropriate agreement. EPA may review State procedures and 
recommend changes as necessary. All recommendations will be in 
writing.
    E. In the event that EPA or Ecology regulations or policies 
change, this delegation shall either be amended to ensure the 
continued implementation of EPA's PSD regulations or the delegation 
shall be revoked.

X. Signatures

    On behalf of the Environmental Protection Agency, I grant 
partial delegation of the federal PSD program, 40 CFR 52.21, to the

[[Page 25881]]

Washington Department of Ecology pursuant to the terms and 
conditions of this delegation agreement and the requirements of the 
Clean Air Act. Date: March 28, 2003. Betty A. Wiese, Director, 
Office of Air Quality, Environmental Protection Agency, Region 10.
    On behalf of the State of Washington and the Department of 
Ecology, I accept partial delegation of the federal Prevention of 
Significant Deterioration program, 40 CFR 52.21, pursuant to the 
terms and conditions of this delegation agreement and the 
requirements of the Clean Air Act. Date: March 28, 2003. Mary E. 
Burg, Manager, Air Quality Program, State of Washington, Department 
of Ecology.

III. Conclusion

    Subject to the conditions of the Partial Delegation Agreement, 
Ecology is delegated authority to implement and enforce the federal PSD 
regulations, as published on December 31, 2002, except for applications 
for PAL increases under 40 CFR 52.21(aa)(11) and except as otherwise 
provided in the Delegation Agreement. Except for applications for PAL 
increases under 40 CFR 52.21(aa)(11), all applications and other 
information required pursuant to the federal PSD regulations at 40 CFR 
52.21 from sources located or locating in the State of Washington,\19\ 
shall continue to be submitted to the Ecology at the following address: 
Department of Ecology, Air Quality Program, PO Box 47600, Olympia, WA 
98504-7600. Applications for PAL increases under 40 CFR 52.21(aa)(11) 
shall be submitted to EPA Region 10 at the following address: Office of 
Air Quality, Environmental Protection Agency, Region 10, OAQ-107, 1200 
Sixth Avenue, Seattle, WA 98101.
---------------------------------------------------------------------------

    \19\ Except in Indian Country, as provided in paragraph III.B. 
of the Delegation Agreement, and sources subject to EFSEC's 
jurisdiction.
---------------------------------------------------------------------------

IV. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
information notice is not a ``significant regulatory action'' and 
therefore is not subject to review by the Office of Management and 
Budget. For this reason, this information notice is also not subject to 
Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355, May 22, 2001). This information notice imposes no additional 
requirements beyond those imposed by state law. Accordingly, the 
Administrator certifies that this information notice will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this information notice delegates pre-existing requirements under 
Federal law and does not impose any additional enforceable duty beyond 
that required by Federal law, it does not contain any unfunded mandate 
or significantly or uniquely affect small governments, as described in 
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This 
information notice 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 (65 FR 67249, November 9, 2000). This information notice also 
does not have federalism implications because it does 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 (64 FR 43255, August 10, 1999). This 
information notice merely delegates the implementation of a Federal 
program, and does not alter the relationship or the distribution of 
power and responsibilities established in the Clean Air Act. This 
information notice also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant.
    In reviewing delegation requests, EPA's role is to approve state 
capabilities, provided that they meet the criteria of the Clean Air 
Act. 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 delegation request for failure to use VCS. It 
would thus be inconsistent with applicable law for EPA, when it reviews 
a delegation request, to use VCS in place of a delegation request 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. This rule 
does not impose an information collection burden under the provisions 
of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). This 
information notice granting partial delegation of the Federal PSD 
program to Ecology is issued under the authority of sections 101, 110, 
and 301 of the Clean Air Act, as amended (42 U.S.C. 7401, 7410, 7601).

    Dated: May 1, 2003.
Ronald Kreizenbeck,
Acting Regional Administrator, Region 10.
[FR Doc. 03-12029 Filed 5-13-03; 8:45 am]
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