[Federal Register Volume 69, Number 64 (Friday, April 2, 2004)]
[Proposed Rules]
[Pages 17368-17374]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-7470]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[WA-04-002; FRL-7642-6]


Approval and Promulgation of Implementation Plans; Washington

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA invites public comment on its proposal to approve numerous 
revisions to the State of Washington Implementation Plan. The Director 
of the Washington State Department of Ecology (Ecology) submitted two 
requests to EPA dated September 24, 2001 and February 9, 2004 to revise 
certain sections of the Puget Sound Clean Air Agency's (PS Clean Air) 
regulation. The revisions were submitted in accordance with the 
requirements of section 110 of the Clean Air Act (hereinafter the Act). 
EPA is not approving in this rulemaking a number of submitted rule 
provisions which are inappropriate for EPA approval and is taking no 
action on a number of other provisions that are unrelated to the 
purposes of the implementation plan.
    EPA also invites public comment on its proposal to approve certain 
source-specific State implementation plan (SIP) revisions relating to 
Saint Gobain Containers and LaFarge North America.

DATES: Written comments must be received on or before May 3, 2004.

ADDRESSES: Comments may be sent either by mail or electronically. 
Written comments should be addressed to Roylene A. Cunningham, EPA, 
Office of Air Quality (OAQ-107), 1200 Sixth Avenue, Seattle, Washington 
98101. Electronic comments should be sent either to [email protected] 
or to http://www.regulations.gov, which is an alternative method for 
sending electronic comments to EPA. To send comments, please follow the 
detailed instructions described in the SUPPLEMENTARY INFORMATION 
section, Part VIII, General Information.
    Copies of the State's request and other information supporting this 
proposed action are available for inspection during normal business 
hours at the following locations: EPA, Office of Air Quality (OAQ-107), 
1200 Sixth Avenue, Seattle, Washington 98101, and State of Washington, 
Department of Ecology, P.O. Box 47600, Olympia, Washington 98504-7600. 
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: Roylene A. Cunningham, EPA, Office of 
Air Quality (OAQ-107), Seattle, Washington 98101, (206) 553-0513, or e-
mail address: [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background of Submittal
II. Requested Sections to be Approved into the SIP, but not IBR'd
    A. Key Changes to PS Clean Air's SIP
    B. Summary of Action
    1. Sections 3.01 through 3.21 in Regulation I, Article 3: 
General Provisions
    2. Section 3.23 Alternate Means of Compliance
III. Requested Sections to be IBR'd into the SIP
    A. Key Changes to PS Clean Air's SIP
    B. Summary of Action
    1. Provisions Approved by EPA and IBR'd
    2. Provisions not Approved by EPA
    3. Provisions on Which EPA is Taking No Action at this Time
IV. Requested Sections to be Removed from the SIP
    A. Summary of Action
    1. Regulation I
    2. Regulation II
    3. Regulation III
V. Saint Gobain Containers, NOC Order of Approval 8244
    A. Background
    B. Summary of Action
VI. LaFarge North America, NOC Order of Approval 5183
    A. Background
    B. Summary of Action
VII. Geographic Scope of SIP Approval
VIII. General Information
IX. Statutory and Executive Order Reviews

I. Background of Submittal

    On February 9, 2004, the Director of Ecology submitted a request to 
EPA to revise certain sections of PS Clean Air's regulation, which has 
been referred to as the PS Clean Air Cleanup or Resolution 
1004. PS Clean Air adopted Resolution 1004 in order 
to facilitate the State Implementation Plan Process Improvement Project 
(SIP PIP), which was initiated by EPA Region 10 to simplify preparing 
and adopting SIP revisions. An important element of this process is to 
not include in the SIP portions of those regulations that are not 
related to attainment or maintenance of the NAAQS or to the 
requirements for SIPs under the Act. Another important element of this 
process is to include in the SIP, but not to submit for incorporation 
by reference into Federal law, portions of regulations that provide 
legal authority necessary to meet the requirements of title I of the 
Act, but do not directly regulate air emissions, because incorporating 
such general authority provisions by reference into Federal law is 
unnecessary and could potentially conflict with EPA's independent 
authorities. PS Clean Air also had as a goal to eliminate, where 
possible, duplicate regulations found in Ecology regulations and EPA 
regulations.
    PS Clean Air is therefore requesting that all sections of their 
currently SIP approved regulations that are not related to criteria 
pollutants or to the requirements for SIPs under title I of the Act be 
removed from the SIP and has submitted a current version of their 
regulations to EPA as a SIP revision. The current submittal includes 
only those sections or regulations relating to criteria pollutants or 
to the requirements for SIPs and designates those provisions that are 
being submitted as part of the SIP but that should not be incorporated 
by reference into Federal law.

II. Requested Sections to be Approved Into the SIP, but not IBR'd

A. Key Changes to PS Clean Air's SIP

    Only three out of the eleven sections in Regulation I, Article 3: 
General Provisions have been revised since they were last approved into 
the SIP. These include Sections 3.01, Duties and Powers of the Control 
Officer; 3.11, Civil Penalties; and 3.17, Appeal of Orders. The 
revisions to these three sections are

[[Page 17369]]

limited to editorial changes such as, Agency name changes; updated 
penalty fees; and references to the authority of the Board in addition 
to the Control Officer.

B. Summary of Action

1. Sections 3.01 through 3.21 in Regulation I, Article 3: General 
Provisions
    EPA is proposing to approve the following sections as part of the 
SIP: Sections 3.01, Duties and Powers of the Control Officer, adopted 
September 9, 1999; 3.05, Investigations by the Control Officer, adopted 
February 10, 1994; 3.07, Compliance Tests, adopted February 9, 1995; 
3.09, Violations--Notice, adopted August 8, 1991; 3.11, Civil 
Penalties, adopted September 26, 2002; 3.13, Criminal Penalties, 
adopted August 8, 1991; 3.15, Additional Enforcement, adopted August 8, 
1991; 3.17, Appeal of Orders, adopted October 8, 1998; 3.19, 
Confidential Information, adopted August 8, 1991; and 3.21, 
Separability, adopted August 8, 1991.
    These provisions do not regulate air emissions, but rather, 
describe general authorities such as investigative and enforcement 
authorities. Incorporation by reference of such provisions into Federal 
law is unnecessary and could potentially conflict with EPA's 
independent authorities. Therefore, EPA is proposing to not incorporate 
by reference these sections into the SIP and to remove the previous 
versions of these regulations from PS Clean Air's incorporation by 
reference section of the Washington State SIP, as follows: Sections 
3.01, Duties and Powers of the Control Officer, adopted February 10, 
1994; 3.05, Investigations by the Control Officer, adopted February 10, 
1994; 3.07, Compliance Tests, adopted February 9, 1995; 3.09, 
Violations--Notice, adopted August 8, 1991; 3.11, Civil Penalties, 
adopted September 12, 1996; 3.13, Criminal Penalties, adopted August 8, 
1991; 3.15, Additional Enforcement, adopted August 8, 1991; 3.17, 
Appeal of Orders, adopted August 8, 1991; 3.19, Confidential 
Information, adopted August 8, 1991; and 3.21, Separability, adopted 
August 8, 1991.
2. Section 3.23 Alternate Means of Compliance
    This section grants PS Clean Air authority to allow other emission 
methods to be used to achieve compliance with the emission standards of 
PS Clean Air's regulation if the owner or operator demonstrates that 
the alternative methods are at least as effective as the required 
method and if the alternative method is included in a permit or 
regulatory order. Section 3.23 essentially authorizes PS Clean Air to 
issue variances from regulatory requirements. EPA approved this 
provision into the SIP on August 6, 1997 (62 FR 42216). Although PS 
Clean Air has requested that this provision not be incorporated by 
reference, the agency did submit it as part of its SIP submittal.
    EPA believes that it erred when it approved this section as part of 
the SIP. Section 110(i) of the Act specifically precludes States from 
changing the requirements of the SIP except through SIP revisions 
approved by EPA. SIP revisions will be approved by EPA only if they 
meet all requirements of section 110 of the Act and the implementing 
regulations at 40 CFR Part 51. See CAA section 110(l); 40 CFR 51.104. 
Section 51.104(d) specifically states that in order for a variance to 
be considered for approval as a SIP revision, the State must submit it 
in accordance with the requirements of 40 CFR 51.104, which includes 
the public notice, comment and hearing provisions of 40 CFR 51.102. 
Section 3.23 does not meet all of the requirements of section 110 of 
the Act, such as ensuring attainment and maintenance of the NAAQS. 
Section 3.23 allows the Control Office to approve ``alternative 
methods'' for achieving compliance if the Control Officer finds that 
the alternative methods are ``at least as effective'' as the required 
methods. This provision, however, does not contain specific, objective, 
and replicable criteria for determining if such ``alternative methods'' 
are in fact at least as effective as the required methods in terms of 
emission rates and ambient impacts. In addition, Section 3.23 states 
that such alternative means of compliance are to be established in 
regulatory orders issued under Section 3.03 or permits issued under 
Article 6 or 7. Section 3.03 is not part of the Washington SIP and 
orders issued under that provision are not Federally enforceable. In 
addition, regulatory orders issued under Section 3.03 are not sent to 
EPA for review prior to issuance. With respect to permits issued under 
Article 6, there is no requirement that all permits issued under 
Article 6 establishing such alternative means of compliance be subject 
to public review. Public and EPA review of revisions to the SIP are 
important elements of the SIP revision process.
    Moreover, EPA's approval of the Washington SIP specifically states 
that any variance, exception, exemption, alternative emission limit, 
bubble, alternative sampling or testing method, compliance schedule 
revision, alternative compliance schedule or any other substantial 
change to a provision of the SIP must be submitted by the State for 
approval in accordance with 40 CFR 51.104 and that any such change does 
not modify the requirements of the Federally-promulgated SIP until it 
has been approved by EPA as an amendment to the SIP in accordance with 
section 110 of the Act. See 40 CFR 52.2476(b) and (c). Therefore, it is 
not appropriate for EPA to approve this provision into the SIP.
    Section 110(k)(6) of the Act authorizes EPA, upon a determination 
that EPA's action approving, disapproving or promulgating any SIP or 
plan revision (or any part thereof) was in error, to revise such action 
as appropriate in the same manner as the approval, disapproval or 
promulgation. In making such a correction, EPA must provide such 
determination and the basis therefore to the State and the public. EPA 
is by this proposal notifying the PS Clean Air, Ecology and the public 
that EPA is removing Section 3.23 from the SIP and from incorporation 
by reference into Federal law.
    It is important to emphasize that if PS Clean Air issues an order 
or permit in reliance on Section 3.23 that approves an alternative to a 
PS Clean Air regulation that has been approved as part of the SIP, EPA 
is not precluded from enforcing the Federally-approved SIP limit 
against the source. The granting of an alternative method of compliance 
by PS Clean Air to a SIP requirement does not change the Federally-
enforceable SIP requirement for that source unless and until the 
alternative has been approved by EPA as a source-specific SIP revision.

III. Requested Sections To Be IBR'd Into the SIP

A. Key Changes to PS Clean Air's SIP

    The docket includes a technical support document which describes in 
detail the substantive changes to the PS Clean Air rules that have been 
submitted by Ecology as revisions to the SIP, EPA's evaluation of the 
changes, and the basis for EPA's proposed action. In general the 
revisions were minor in nature and were made to improve the overall 
clarity, effectiveness, and enforceability of PS Clean Air's 
regulation.

B. Summary of Action

1. Provisions Approved by EPA and IBR'd
    EPA has determined that the following sections are consistent with 
the requirements of title I of the Act and is proposing to approve them 
as part of

[[Page 17370]]

the SIP and incorporate them by reference into Federal law:
    Regulation I, Sections 1.01, Policy; 1.03, Name of Agency; and 
1.05, Short Title, adopted September 9, 1999; 3.04, Reasonably 
Available Control Technology [except (e)], adopted March 11, 1999; 3.06 
Credible Evidence, adopted October 8, 1998; 5.03, Registration Required 
[except (a)(5)], adopted July 8, 1999; 5.05 General Reporting 
Requirements for Registration, adopted September 10, 1998; 7.09, 
General Reporting Requirements for Operating Permits, adopted September 
10, 1998; 8.04, General Conditions for Outdoor Burning; 8.05, 
Agricultural Burning; 8.09, Description of King County No-Burn Area; 
8.10, Description of Pierce County No-Burn Area; and 8.11, Description 
of Snohomish County No-Burn Area, adopted November 9, 2000; and 8.12, 
Description of Kitsap County No-Burn Area, adopted October 24, 2002; 
9.03, Emission of Air Contaminant: Visual Standard [except (e)], 
adopted March 11, 1999; 9.04, Opacity Standards for Equipment with 
Continuous Opacity Monitoring Systems [except (d)(2) and (f)], adopted 
April 9, 1998; 9.09, Particulate Matter Emission Standards, adopted 
April 9, 1998; 9.15, Fugitive Dust Control Measures, adopted March 11, 
1999; 9.16, Spray-Coating Operations, adopted July 12, 2001; 12.01, 
Applicability and 12.03, Continuous Emission Monitoring Systems [except 
(b)(1) and (b)(2)], adopted April 9, 1998; 13.01, Policy and Purpose, 
adopted September 9, 1999; and 13.02, Definitions, adopted October 8, 
1998.
    Regulation II, Sections 1.01, Purpose; 1.02, Policy; 1.03, Short 
Title; and 1.05, Special Definitions, adopted September 9, 1999; 2.01, 
Definitions, adopted July 8, 1999; 2.07, Gasoline Stations, adopted 
December 9, 1999; 2.08, Gasoline Transport Tanks, adopted July 8, 1999; 
and 3.02, Volatile Organic Compound Storage Tanks, July 8, 1999.
2. Provisions Not Approved by EPA
    EPA is proposing not to approve certain provisions, which EPA 
believes are inconsistent with the requirements of the Act. To the 
extent such provisions are currently incorporated by reference into the 
SIP, EPA is proposing to remove them from the SIP.
    Subsections 5.03(a)(5), 9.03(e), 9.04(d)(2), 9.04(f), and 
12.03(b)(2) each authorize PS Clean Air to modify standards or 
requirements relied on to attain and maintain the NAAQS by granting an 
exemption or alternative to such requirements without going through a 
SIP revision and, as such, are not approvable. As discussed above, 
section 110(i) of the Act specifically precludes States from changing 
the requirements of the SIP except through SIP revisions approved by 
EPA. SIP revisions will be approved by EPA only if they meet all 
requirements of section 110 of the Act and the implementing regulations 
at 40 CFR part 51. See CAA section 110(l); 40 CFR 51.104. Section 
51.104(d) specifically states that in order for a variance to be 
considered for approval as a SIP revision, the State must submit it in 
accordance with the requirements of 40 CFR 51.104, which includes the 
public notice, comment and hearing provisions of 40 CFR 51.102.
    Subsections 5.03(a)(5), 9.03(e), 9.04(d)(2), 9.04(f), and 
12.03(b)(2) do not meet all of the requirements of section 110 of the 
Act, such as ensuring attainment and maintenance of the NAAQS. None of 
these provisions contain sufficiently specific, objective, and 
replicable criteria for determining if the exemption or alternative 
methods or requirements will, in fact, be at least as effective as the 
required methods or requirements in terms of emission rates and ambient 
impacts. Moreover, none of the provisions ensure that the approval of 
such exemptions or alternatives will be subject to EPA and public 
review. In the case of an exemption granted under Subsection 
5.03(a)(5), there is no review at all of the granting of the exemption. 
In the case of Subsections 9.03(e), 9.04(d)(2), 9.04(f), and 
12.03(b)(2), the approval of the alternative or exemption will be 
contained in an order or permit issued under Section 3.03 or Article 6. 
As stated above, Section 3.03 is not part of the Washington SIP and 
orders issued under that provision are not Federally enforceable. In 
addition, regulatory orders issued under Section 3.03 are not sent to 
EPA for review prior to issuance. With respect to permits issued under 
Article 6, there is no requirement that all permits issued under 
Article 6 establishing such alternative methods or requirements be 
subject to public review. Public and EPA review of revisions to the SIP 
are important elements of the SIP revision process.
    Moreover, EPA's approval of the Washington SIP specifically states 
that any variance, exception, exemption, alternative emission limit, 
bubble, alternative sampling or testing method, compliance schedule 
revision, alternative compliance schedule or any other substantial 
change to a provision of the SIP must be submitted by the State for 
approval in accordance with 40 CFR 51.104 and that any such change does 
not modify the requirements of the Federally-promulgated SIP until it 
has been approved by EPA as an amendment to the SIP in accordance with 
section 110 of the Act. See 40 CFR 52.2476(b) and (c). Therefore, it is 
not appropriate for EPA to approve these provisions into the SIP.
    Section 110(k)(6) of the Act authorizes EPA, upon a determination 
that EPA's action approving, disapproving or promulgating any SIP or 
plan revision (or any part thereof) was in error, to revise such action 
as appropriate in the same manner as the approval, disapproval or 
promulgation. In making such a correction, EPA must provide such 
determination and the basis therefore to the State and the public. EPA 
is by this proposal notifying the PS Clean Air, Ecology and the public 
that EPA is removing from the SIP and from incorporation by reference 
into Federal law Subsection 9.03(e) (State adoption date September 8, 
1994; EPA effective date June 29, 1995) and Section 9.09(c)\1\ (State 
adoption date February 10, 1994; EPA effective date June 29, 1995).
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    \1\ Note Subsection 9.04(d)(2) was revised to incorporate the 
substantive provisions of Section 9.09(c) and Section 9.09(c), which 
was previously approved as part of the SIP, was deleted.
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    It is important to emphasize that, even if PS Clean Air grants an 
exemption to registration, an alternate opacity standard, or an 
exemption from a data recovery requirement, which exemption or 
alternative has not been approved as part of the Washington SIP, EPA is 
not precluded from enforcing the Federally-approved SIP registration 
requirement, opacity limit, or monitoring requirement against the 
source. As provided in 40 CFR 52.2476, the granting of such an 
exemption or alternate opacity standard by PS Clean Air to a SIP 
requirement does not change the Federally-enforceable SIP requirement 
for that source unless and until the exemption or alternate has been 
approved by EPA as a source-specific SIP revision.\2\
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    \2\ Note that PS Clean Air has also not submitted as part of 
this SIP submittal Sections 3.03, General Regulatory Orders, and 
Article IV, Variances. These provisions also could be used to change 
requirements approved as part of the SIP without a SIP revision. As 
such, they are not approvable under title I of the Act for the 
reasons stated above and EPA is in no way approving such provisions.
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    Subsection 12.03(b)(1) is different in effect from the other 
provisions that EPA is not approving in this action. This provision 
authorizes the Control Officer to excuse or exempt an owner or operator 
from periods of monitoring downtime if the owner or operator 
demonstrates to the Control Officer that the downtime was not the 
result of inadequate design, operation, or maintenance, or any other 
reasonably preventable condition and any necessary repairs to the 
monitoring

[[Page 17371]]

system are conducted in a timely manner. In contrast to the other 
provisions discussed in this section, Subsection 12.03(b)(1) authorizes 
the Control Officer to excuse an event after the occurrence of the 
event. As such, Subsection 12.03(b)(1) is in essence an enforcement 
discretion provision. Although this provision does have objective 
criteria relating to the exercise of this discretion, the provision 
does not clarify that the Control Officers's determination that 
compliance with the data recovery requirements should be excused is not 
binding on EPA or citizens. As such, it is not appropriate for EPA to 
approve such a provision. See Memorandum from Steven A. Herman, 
Assistant Administrator for Enforcement and Compliance Monitoring, and 
Robert Perciasepe, Assistant Administrator for Air And Radiation, to 
the Regional Administrators, entitled State Implementation Plans: 
Policy Regarding Excess Emissions During Malfunctions, Startup, and 
Shutdown, p. 3 (September 20, 1999).
3. Provisions on Which EPA is Taking No Action at this Time
    Article 1, Section 1.07, Definitions, has been revised since this 
SIP submission was submitted to EPA. PS Clean Air will be submitting 
the revisions to Section 1.07 to EPA in a separate action. EPA will 
therefore be taking action on this section in a separate rulemaking.

IV. Requested Sections To Be Removed from the SIP

    PS Clean Air has requested that EPA remove certain provisions from 
the SIP because they are not required elements of a SIP under title I 
of the Act or because they have been previously repealed by the Agency.

A. Summary of Action

    EPA proposes to take the following action on the provisions which 
PS Clean Air has requested be removed from the SIP.
1. Regulation I

Section 5.07, Registration Fees

    Section 5.07, Registration Fees (adopted September 11, 1997) was 
inappropriately approved into the SIP. Local fee provisions that are 
not economic incentive programs and are not designed to replace or 
relax a SIP emission limit are generally not appropriate for inclusion 
into the SIP. While it is appropriate for local agencies to implement 
fee provisions, for example, to recover costs for issuing permits, it 
is generally not appropriate to make local fee collection Federally 
enforceable. Therefore, EPA is proposing to remove Section 5.07, 
Registration Fees, from the SIP.

Sections 8.02, Outdoor Fires--Prohibited Types, and 8.03, Outdoor 
Fires--Prohibited Areas

    Sections 8.02, Outdoor Fires--Prohibited Types (adopted February 8, 
1996), and 8.03, Outdoor Fires--Prohibited Areas (adopted February 9, 
1995), were repealed by PS Clean Air's Board by Resolution No. 933 on 
November 9, 2000. The requirements of these provisions are included in 
the new Section 8.04, General Conditions for Outdoor Burning (adopted 
November 9, 2000), through incorporation by reference of the provisions 
of WAC 173-425. Removing these provisions from the SIP does not change 
the stringency of the SIP because Section 8.04 is being submitted for 
inclusion into the SIP. Therefore, EPA is proposing to remove Sections 
8.02, Outdoor Fires--Prohibited Types and 8.03, Outdoor Fires--
Prohibited Areas from the SIP.

Sections 9.11, Emission of Air Contaminant: Detriment to Person or 
Property and 9.13, Emission of Air Contaminant: Concealment and Masking 
Requirement

    PS Clean Air is requesting that these sections be removed from the 
SIP. As justification for the request, the Agency states that Sections 
9.11 (adopted June 9, 1983) and 9.13 (adopted June 9, 1988) are only 
used as tools to deal with nuisance, primarily odors. PS Clean Air 
further states that, because the similar provisions of WAC 173-400-
040(5) and (7) are already part of the SIP, it is unnecessary to 
include Sections 9.11 or 9.13 in the SIP.
    With reservations, EPA is granting PS Clean Air's request to remove 
Section 9.13 from the SIP, but is denying the request to remove Section 
9.11. As an initial matter, EPA does not agree that Sections 9.11 and 
9.13 apply only or primarily to nuisance and odors. There is nothing in 
the text of the regulations to suggest that they are so limited, and 
EPA believes the regulations apply equally to NAAQS pollutants, such as 
particulate. As part of the SIP, EPA would not attempt to enforce the 
provisions of Sections 9.11 and 9.13 as they apply to odors and 
nuisance. If, in fact, PS Clean Air intends that these sections apply 
only to nuisance and odors, PS Clean Air could create separate 
``odors'' or ``nuisance'' provisions much like WAC 173-400-040(4), 
Odors, which is not included in the SIP.
    It is true that WAC 173-400-040(5), Emissions detrimental to 
persons or property, and WAC 173-400-040(7), Concealment and masking, 
are very similar to the provisions of PS Clean Air Regulation I, 
Section 9.11 and 9.13, respectively. These WAC provisions apply 
Statewide and have been part of the Washington SIP for many years. To 
avoid confusion, we believe that PS Clean Air Sections 9.11 and 9.13 
should also be included as part of the SIP because they do not, on 
their face, exclude NAAQS pollutants, and because they are in effect in 
PS Clean Air's jurisdiction. Because WAC 173-400-040(5) and WAC 173-
400-040(7) will continue to apply Statewide, even if the PS Clean Air 
provisions are removed from the SIP, however, removing these provisions 
from the SIP will not decrease the stringency of the Washington SIP. 
For this reason, EPA, with great reluctance, is proposing to grant 
PSCAA's request to remove Section 9.13 from the SIP.
    EPA is proposing to deny PS Clean Air's request, however, to remove 
Section 9.11 from the SIP. Section 6.03, Notice of Construction, which 
PS Clean Air is submitting as a SIP revision, refers to and relies on 
Section 9.11 for applicability. Section 6.03(a)(8) (adopted July 12, 
2001) \3\, states that a minor new source review permit is required for 
``any stationary source previously exempted from review that is cited 
by the Agency for causing air pollution under Section 9.11 of this 
regulation.'' Thus, sources that are cited for violation of Section 
9.11 are subject to PS Clean Air's minor new source review program, 
which must be submitted and approved as part of the SIP. Until Section 
9.11 is no longer tied to applicability of PS Clean Air's new source 
review program, EPA does not believe that this provision can be removed 
from the SIP.
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    \3\ PS Clean Air has proposed to renumber this subsection to 
Section 6.03(a)(5) and plans on submitting the revised Section 6.03 
as part of the SIP.
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    In granting PS Clean Air's request to remove Section 9.13 from the 
SIP, EPA emphasizes the importance of the fact that the Federally-
enforceable requirements of the Washington SIP have not, in fact, been 
substantively changed by the removal because WAC 173-400-040(7) 
continues to apply to sources within PS Clean Air's jurisdiction. If, 
for example, Washington was seeking to remove WAC 173-400-040(5) and 
(7), EPA would require a showing that, consistent with CAA section 
110(l), removal of these provisions did not interfere with any

[[Page 17372]]

applicable requirement concerning attainment and reasonable further 
progress or any other applicable requirement of the Act and that, if 
applicable, the revision meets the requirements of CAA section 193.

Sections 11.01, Ambient Air Quality Standards, and 11.02, Ambient Air 
Monitoring

    PS Clean Air is requesting that Sections 11.01 and 11.02 (adopted 
April 14, 1994) be removed from the SIP because they are informational 
only and not regulatory. Sections 11.01 and 11.02 are not referenced in 
any other provisions that are part of the PS Clean Air's regulations 
that are approved into the SIP. Therefore, EPA is proposing to grant PS 
Clean Air's request to remove Sections 11.01 and 11.02 from the SIP.

Sections 12.02, Continuous Emission Monitoring Requirements, and 12.04, 
Recordkeeping and Reporting Requirements

    Sections 12.02, Continuous Emission Monitoring Requirements, and 
12.04, Recordkeeping and Reporting Requirements (adopted August 10, 
1989) were repealed by PS Clean Air's Board through Resolution No. 865 
on April 9, 1998. The requirements of these provisions are included in 
new and revised Sections 12.01, Applicability, and Section 12.03, 
Continuous Emission Monitoring Systems (adopted April 9, 1998), through 
incorporation by reference of 40 CFR Part 60, 61, and 63. Removal of 
these provisions from the SIP does not make the SIP less stringent 
because Sections 12.01 and 12.03 are being submitted for inclusion into 
the SIP. Therefore, EPA is proposing to grant PS Clean Air's request to 
remove Sections 12.02, Continuous Emission Monitoring Requirements, and 
12.04, Recordkeeping and Reporting Requirements from the SIP.
2. Regulation II

Section 2.04, Volatile Organic Compound Storage Tanks

    Section 2.04, Volatile Organic Compound Storage Tanks (adopted June 
13, 1991) was revised and renumbered to Regulation II, Section 3.02 
Volatile Organic Compound Storage Tanks. The purpose of the revisions 
to this section was to reflect that the requirements for large volatile 
organic compound storage tanks are sometimes used for products other 
than petroleum (which makes this section more appropriately located in 
Article 3: Miscellaneous Volatile Organic Compound Emission Standards). 
Removing Section 2.04 from the SIP does not change the stringency of 
the SIP because Section 3.02 is being submitted for inclusion into the 
SIP. Therefore, EPA is proposing to grant PS Clean Air's request to 
remove Section 2.04, Volatile Organic Compound Storage Tanks from the 
SIP.

Section 3.07, Petroleum Solvent Dry Cleaning Systems

    Section 3.07, Petroleum Solvent Dry Cleaning Systems (adopted 
February 11, 1982) was repealed by PS Clean Air's Board through 
Resolution No. 914 on March 9, 2000. PS Clean Air's Board took this 
action because it determined that Section 3.07 was not necessary 
because there were no longer any sources subject to this section in 
their jurisdiction. There is no relaxation of the SIP because if a new 
facility sought operation within PS Clean Air's jurisdiction; 
Regulation I, Article 6, Notice of Construction would apply and insure 
local, State, and Federal emission requirements were met. Therefore, 
EPA is proposing to remove Section 3.07, Petroleum Solvent Dry Cleaning 
Systems from the SIP.
3. Regulation III
    PS Clean Air is requesting removal of Regulation III, their air 
toxics regulations, from the SIP. The provisions of Regulation III are 
not related to criteria pollutants regulated under title I of the Act 
or to the requirements for SIPs under title I of the Act and therefore, 
were inappropriately approved into the SIP. Thus, EPA is proposing to 
grant PS Clean Air's request to remove Regulation III from the SIP.

V. Saint Gobain Containers, NOC Order of Approval 8244

    This Order was issued to Saint-Gobain Containers and will become 
effective on the effective date of EPA's SIP approval. The Order 
establishes PM10 emission limits for Glass Furnaces Nos. 2, 3, 4, and 5 
combined; PM10 emissions limits from any baghouse exhaust; and details 
of compliance response.

A. Background

    In October 1992, EPA noted that the Puget Sound Region PM10 SIP was 
deficient because the plan did not contain enforceable facility-wide 
particulate emission limits for the industrial sources in the Seattle-
Duwamish area. EPA conditionally approved the Puget Sound Region PM10 
SIP on June 23, 1994 (59 FR 32370), subject to the condition that the 
State submit limits for these sources on a set schedule.
    In December 1994, the Board of Directors of the Puget Sound Air 
Pollution Control Agency (now known as Puget Sound Clean Air Agency) 
issued regulatory orders with emission limits for major industrial 
sources in the Duwamish area and EPA approved these regulatory orders 
as part of the SIP on October 26, 1995 (60 FR 54812). Saint Gobain was 
one of these sources. Subsequently, Saint Gobain requested a minor 
revision to its facility emission limit. The requested change relates 
to the form of the standard and the compliance test procedure, but not 
the overall emission limit. PS Clean Air proposes to approve this 
change and has forwarded the proposal to Ecology with a request that 
Ecology submit the change as a revision to the SIP.

B. Summary of Action

    PS Clean Air is proposing a minor revision to Saint-Gobain's PM10 
emission limits (i.e., Glass Furnaces Nos. 2, 3, 4, and 5) within the 
facility and the test procedure for determining compliance. The 
revision affects the form of the standard and the compliance test 
procedure, but not the overall emission limit, which was established to 
protect the ambient PM10 standard. Emissions allowed under the order 
are expected to remain unchanged. Therefore, EPA is proposing to 
approve Saint Gobain Containers, NOC Order of Approval 8244 
into the SIP.

VI. LaFarge North America, NOC Order of Approval 5183

A. Background

    PS Clean Air issued an order to Holnam, Inc., Ideal Division, now 
known as LaFarge North America, Inc., on February 9, 1994, under the 
authority of Regulation I, Section 9.09(c) [State adopted, February 10, 
1994], which has since been renumbered to Regulation I, Section 
9.04(d)(2). The rule language reads as follows: ``The provisions of 
Section 9.09(b)(2) shall not apply to any source that has obtained an 
Order of Approval for a Notice of Construction that correlates the 
particulate matter concentration with opacity such that any violation 
of the alternate opacity standard accurately indicates a violation of 
the applicable emission standard of the Section 9.09(a).'' [State 
adopted, February 10, 1994]
    LaFarge submitted to PS Clean Air an analysis showing that, at 0.05 
gr/dscf, its predicted opacity was 15.02%. LaFarge's submittal also 
demonstrated that the change in the in stack opacity levels was not 
expected to have an impact on total annual or short term particulate 
matter emissions. Therefore,

[[Page 17373]]

PS Clean Air granted LaFarge an alternate opacity limit of 12% (1hr 
average) in NOC Order of Approval 5183, dated February 9, 
1994. The Order also requires LaFarge to source test annually to verify 
that the 12% (1hr average) opacity standard demonstrates continuous 
compliance with the 0.05 gr/dscf mass emission limit of Section 9.09(a) 
of Regulation I [State adopted, February 10, 1994], which has since 
been renumbered to Regulation I, Section 9.09.
    PS Clean Air is submitting NOC Order of Approval 5183, 
dated February 9, 1994 for inclusion into the SIP at this time.

B. Summary of Action

    Based on LaFarge's submittal which demonstrated that the change in 
the in stack opacity levels was not expected to have an impact on total 
annual or short term particulate matter emissions, EPA is proposing to 
approve the LaFarge order as a source-specific SIP revision.

VII. Geographic Scope of SIP Approval

    This SIP approval 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 Act in Indian Country in Washington because PS Clean Air 
did not adequately demonstrate authority over sources and activities 
located within the exterior boundaries of Indian reservations and 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 lands 
within the 1873 Survey Area. Therefore, EPA's SIP approval applies to 
sources and activities on non-trust lands within the 1873 Survey Area.

VIII. General Information

A. How Can I Get Copies of This Document and Other Related Information?

    1. The Regional Office has established an official public 
rulemaking file available for inspection at the Regional Office, under 
Docket number WA-04-002. The official public file consists of the 
documents specifically referenced in this action, and other information 
related to this action. The official public rulemaking file is 
available for public viewing at EPA, Office of Air Quality (OAQ-107), 
1200 Sixth Avenue, Seattle, Washington 98101. EPA requests that, if 
possible, you contact the person listed in the FOR FURTHER INFORMATION 
CONTACT section to schedule your inspection. EPA's official hours of 
business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding 
Federal Holidays.
    2. Copies of the State submission and EPA's technical support 
document are also available for public inspection during normal 
business hours, by appointment at the State of Washington, Department 
of Ecology, P.O. Box 47600, Olympia, Washington 98504-7600.
    3. Electronic Access. You may access this Federal Register document 
electronically through the Regulations.gov Web site located at http://www.regulations.gov where you can find, review, and submit comments on 
Federal rules that have been published in the Federal Register, the 
Government's legal newspaper, and are open for comment.
    For public commenters, it is important to note that EPA's policy is 
that public comments, whether submitted electronically or on paper, 
will be made available for public viewing at the EPA Regional Office, 
as EPA receives them and without change, unless the comment contains 
copyrighted material, CBI, or other information whose disclosure is 
restricted by statute. When EPA identifies a comment containing 
copyrighted material, EPA will provide a reference to that material in 
the version of the comment that is placed in the official public 
rulemaking file. The entire printed comment, including the copyrighted 
material, will be available at the Regional Office for public 
inspection.

B. How and To Whom Do I Submit Comments?

    You may submit comments electronically, by mail, or through hand 
delivery/courier. To ensure proper receipt by EPA, identify the 
appropriate rulemaking identification number by including the text 
``Public comment on proposed rulemaking WA-04-002'' in the subject line 
on the first page of your comment. Please ensure that your comments are 
submitted within the specified comment period. Comments received after 
the close of the comment period will be marked ``late.'' EPA is not 
required to consider these late comments.
    1. Electronically. If you submit an electronic comment as 
prescribed below, EPA recommends that you include your name, mailing 
address, and an e-mail address or other contact information in the body 
of your comment. Also include this contact information on the outside 
of any disk or CD ROM you submit, and in any cover letter accompanying 
the disk or CD ROM. This ensures that you can be identified as the 
submitter of the comment and allows EPA to contact you in case EPA 
cannot read your comment due to technical difficulties or needs further 
information on the substance of your comment. EPA's policy is that EPA 
will not edit your comment, and any identifying or contact information 
provided in the body of a comment will be included as part of the 
comment that is placed in the official public docket. If EPA cannot 
read your comment due to technical difficulties and cannot contact you 
for clarification, EPA may not be able to consider your comment.
    a. E-mail. You may send comments by electronic mail (e-mail) to 
[email protected], please including the text ``Public comment on 
proposed rulemaking WA-04-002'' in the subject line. EPA's e-mail 
system is not an ``anonymous access'' system. If you send an e-mail 
comment directly without going through Regulations.gov, EPA's e-mail 
system automatically captures your e-mail address. E-mail addresses 
that are automatically captured by EPA's e-mail system are included as 
part of the comment that is placed in the official public docket.
    b. Regulations.gov. You may use Regulations.gov as an alternative 
method to submit electronic comments to EPA. Go directly to 
Regulations.gov at http://www.regulations.gov, then select 
Environmental Protection Agency at the top of the page and use the 
``go'' button. The list of current EPA actions available for comment 
will be listed. Please follow the online instructions for submitting 
comments. The system is an ``anonymous access'' system, which means EPA 
will not know your identity, e-mail address, or other contact 
information unless you provide it in the body of your comment.
    c. Disk or CD ROM. You may submit comments on a disk or CD ROM that 
you mail to the mailing address identified in section 2, directly 
below. These electronic submissions will be accepted in WordPerfect, 
Word or ASCII file format. Avoid the use of special characters and any 
form of encryption.
    2. By Mail. Send your comments to: Roylene A. Cunningham, EPA, 
Office of Air Quality, (OAQ-107), 1200 Sixth Avenue, Seattle, 
Washington 98101. Please include the text ``Public comment on proposed 
rulemaking WA-04-002'' in the subject line on the first page of your 
comment.
    3. By Hand Delivery or Courier. Deliver your comments to: Roylene 
A.

[[Page 17374]]

Cunningham, EPA, Office of Air Quality, (OAQ-107), 1200 Sixth Avenue, 
Seattle, Washington 98101. Such deliveries are only accepted during the 
Regional Office's normal hours of operation. The Regional Office's 
official hours of business are Monday through Friday, 8:30 a.m. to 4:30 
p.m. excluding Federal holidays.

C. How Should I Submit CBI To the EPA?

    Do not submit information that you consider to be CBI 
electronically to EPA. You may claim information that you submit to EPA 
to be CBI by marking any part or all of that information as CBI (if you 
submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as 
CBI and then identify electronically within the disk or CD ROM the 
specific information that is CBI). EPA will not disclose information so 
marked except in accordance with procedures set forth in 40 CFR part 2.
    In addition to one complete version of the comment that includes 
any information claimed as CBI, a copy of the comment that does not 
contain the information claimed as CBI must be submitted for inclusion 
in the official public regional rulemaking file. If you submit the copy 
that does not contain CBI on disk or CD ROM, mark the outside of the 
disk or CD ROM clearly that it does not contain CBI. Information not 
marked as CBI will be included in the public file and available for 
public inspection without prior notice. If you have any questions about 
CBI or the procedures for claiming CBI, please consult the person 
identified in the FOR FURTHER INFORMATION CONTACT section.

IX. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed action is not a ``significant regulatory action'' and 
therefore is not subject to review by the Office of Management and 
Budget. For this reason, this action 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 
proposed action merely proposes to approve State law as meeting Federal 
requirements and imposes no additional requirements beyond those 
imposed by State law. Accordingly, the Administrator certifies that 
this proposed rule 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 rule proposes to approve pre-
existing requirements under State law and does not impose any 
additional enforceable duty beyond that required by State 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 proposed 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 (65 FR 67249, November 9, 2000). This action 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 action 
merely proposes to approve a State rule implementing a Federal 
standard, and does not alter the relationship or the distribution of 
power and responsibilities established in the Act. This proposed 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), because it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve State 
choices, provided that they meet the criteria of the 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 SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the 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 proposed 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.).

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

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

    Dated: March 24, 2004.
L. John Iani,
Regional Administrator, Region 10.
[FR Doc. 04-7470 Filed 4-1-04; 8:45 am]
BILLING CODE 6560-50-P