Approval and Promulgation of State Implementation Plans: Washington Approval of Section 112(l) Authority; Operating Permits; Washington

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[WA22-1-6362; FRL-5214-2]

Approval and Promulgation of State Implementation Plans:

Washington Approval of Section 112(l) Authority; Operating Permits;

Washington

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving in part

and disapproving in part, numerous revisions to the State of Washington

Implementation Plan submitted to EPA by the Director of the Washington

Department of Ecology (WDOE) on March 8, 1994. The revisions were

submitted in accordance with the requirements of section 110 and part D

of the Clean Air Act (hereinafter the Act). EPA is taking no action on

a number of provisions which are unrelated to the purposes of the

implementation plan. EPA is also approving certain WDOE rules under the

authority of section 112(l) of the Act in order to recognize conditions

and limitations established pursuant to these rules as Federally

enforceable.

EFFECTIVE DATE: This action will be effective on June 2, 1995.

ADDRESSES: Copies of the State's request and other information

supporting today's action are available for inspection during normal

business hours at the following locations: EPA, Air & Radiation Branch

(AT-082), 1200 Sixth Avenue, Seattle, Washington 98101, and State of

Washington, Department of Ecology, 4550 Third Avenue SE, Lacey,

Washington 98504

Documents which are incorporated by reference are available for

public inspection at the Air and Radiation Docket and Information

Center, EPA, 401 M Street, SW, Washington, D.C. 20460, as well as the

above addresses.

FOR FURTHER INFORMATION CONTACT: David C. Bray, Permit Programs

Manager, EPA, Air & Radiation Branch (AT-082), Seattle, Washington

98101, (206) 553-4253.

SUPPLEMENTARY INFORMATION:

I. Background

The Washington Department of Ecology (WDOE) amended its Part D NSR

rules on August 20, 1993 and submitted them to EPA on March 8, 1994 as

a revision to the Washington SIP. The WDOE also amended several other

provisions of its current rules for air pollution sources and submitted

them to EPA on March 8, 1994 as a revision to the Washington SIP. On

September 29, 1994, the Director of the WDOE submitted an official

application to obtain approval for Title V permitting authorities (with

the exception of the Puget Sound Air Pollution Control Agency (PSAPCA)

and the Southwest Air Pollution Control Agency (SWAPCA)) in the State

of Washington to implement and enforce the statewide rules for

``Controls for New Sources of Toxic Air Pollutants'' (WAC 173-460) as

an interim program to implement section 112(g) of the Act. The Director

of the WDOE also submitted an official application on behalf of the

PSAPCA and SWAPCA to obtain approval for those local agencies to

implement and enforce their own rules (portions of PSAPCA Regulations I

and III and SWAPCA Regulation 460) for new sources of toxic air

pollutants as interim programs to implement section 112(g) of the Act.

On February 22, 1995 (60 FR 9802), EPA proposed to approve in part

and disapprove in part, numerous revisions to the State of Washington

Implementation Plan. EPA proposed to take no action on a number of

provisions which are unrelated to the purposes of the implementation

plan. EPA also proposed to approve certain WDOE rules, and certain

rules of the Puget Sound Air Pollution Control Agency (PSAPCA) and

Southwest Air Pollution Control Authority (SWAPCA), under the authority

of section 112(l) of the Act, in order to recognize conditions and

limitations established pursuant to these rules as Federally

enforceable.

On May 8, 1995, WDOE officially withdrew its request for approval

of the State and local agency rules submitted September 29, 1994 as an

interim program for implementing section 112(g) of the Act. WDOE also

withdrew two provisions of WAC 173-400 which were included in its March

8, 1994 SIP submittal. [[Page 28727]]

II. Response to Comments

EPA received comments from Northwest Pulp & Paper Association, the

American Forest & Paper Association, and the Washington Department of

Ecology. With the exception of two comments from the WDOE supporting

EPA's proposed approval of WAC 173-400-091, all of the comments

pertained to rules which the WDOE has since withdrawn from its SIP and

Section 112(l) submittal. Because the rules on which the adverse

comments were submitted are no longer before EPA for consideration, the

adverse comments are now moot.

III. This Action

On February 22, 1995 (60 FR 9802), EPA proposed to approve in part,

disapprove in part, and take no action in part, on numerous revisions

to Chapter 173-400 WAC ``General Regulations for Air Pollution

Sources.'' With the exception of the two provisions which were

withdrawn by WDOE on May 8, 1995, EPA today is taking final action on

the proposed approvals and disapprovals.

Specifically, EPA is approving revisions to WAC 173-400-030

``Definitions;'' WAC 173-400-040 ``General standards for maximum

emissions'' (except for -040(1)(c) and (d); -040(2); -040(4); and the

second paragraph of -040(6)); WAC 173-400-100 ``Registration;'' WAC

173-400-105 ``Records, monitoring, and reporting;'' WAC 173-400-110

``New source review (NSR);'' WAC 173-400-171 ``Public involvement;''

WAC 173-400-230 ``Regulatory actions;'' and WAC 173-400-250

``Appeals;'' and the addition of WAC 173-400-081 ``Startup and

shutdown;'' WAC 173-400-091 ``Voluntary limits on emissions;'' WAC 173-

400-107 ``Excess emissions;'' WAC 173-400-112 ``Requirements for new

sources in nonattainment areas'' (except for -112(8)); and WAC 173-400-

113 ``Requirements for new sources in attainment or unclassifiable

areas'' (except for -113(5)).

EPA is disapproving WAC 173-400-040(1)(c) ``alternative time

periods for opacity standards;'' WAC 173-400-040(1)(d) ``alternative

opacity limits;'' the second paragraph of WAC 173-400-040(6)

``exemption from sulfur dioxide emission limit;'' the exception

provision in WAC 173-400-050(3) ``alternative oxygen correction

factor;'' WAC 173-400-120 ``Bubble rules;'' WAC 173-400-131 ``Issuance

of emission reduction credits;'' WAC 173-400-136 ``Use of emission

reduction credits;'' WAC 173-400-141 ``Prevention of significant

deterioration (PSD);'' and WAC 173-400-180 ``Variance.''

EPA is taking no action on WAC 173-400-040(2) ``Fallout;'' WAC 173-

400-040(4) ``Odors;'' WAC 173-400-070(7) ``Sulfuric acid plants;'' WAC

173-400-075 ``Emission standards for sources emitting hazardous air

pollutants;'' and WAC 173-400-115 ``Standards of performance for new

sources.'' Note that WAC 173-400-112(8), WAC 173-400-113(5), and WAC

173-400-114 were not submitted for inclusion in the Washington SIP. All

other provisions of WAC 173-400 which are not mentioned above were

previously approved by EPA on January 15, 1993 (58 FR 4578). See the

February 22, 1995 Federal Register for a complete discussion of EPA's

findings and rationale for its proposed approvals and disapprovals.

As was proposed in the February 22, 1995 Federal Register, after

final EPA approval of WAC 173-400-091, ``regulatory orders'' issued

pursuant to that rule, and terms and conditions contained therein, will

be enforceable by the EPA and by citizens under section 304 of the Act

regardless of whether such orders were issued prior to EPA approval of

that section. However, such orders would have to have been issued after

the effective date of WAC 173-400-091 (i.e., September 20, 1993) in

accordance with all of the provisions set forth in that section.

Sources could, after the effective date of this approval, rely on

``regulatory orders'' issued pursuant to WAC 173-400-091 as a means to

limit their potential to emit criteria pollutants, pollutants regulated

under the PSD provisions of the SIP, and hazardous air pollutants

listed in section 112(b) of the Act in order to avoid requirements

which would otherwise apply to ``major stationary sources.''

After the effective date of this approval, regulatory orders issued

pursuant to WAC 173-400-091 will become part of the Washington SIP upon

issuance by a permitting authority without further action by EPA.

However, Section 110(h) requires EPA to assemble, maintain, and

periodically publish each SIP. Furthermore, 40 CFR 51.104(e) and 51.326

require a State to submit to EPA all revisions to its SIP. Therefore,

each regulatory issued pursuant to WAC 173-400-091 must be submitted to

EPA for inclusion in the assembled SIP. While section 51.326 allows the

submittal of such SIP revisions to occur on an annual basis, EPA

strongly encourages permitting authorities to submit such revisions on

a more routine basis (e.g., within 30 days of issuance) so that EPA and

the public are aware of the major source status and current SIP

provisions for affected sources.

IV. Effective Date

Pursuant to Section 553(d)(3) of the Administrative Procedures Act

(APA), this final notice is effective June 2, 1995. Section 553(d)(3)

of the APA allows EPA to waive the requirement that a rule be published

30 days before the effective date if EPA determines there is ``good

cause'' and publishes the grounds for such a finding with the rule.

Under section 553(d)(3), EPA must balance the necessity for immediate

federal enforceability of these SIP revisions against principles of

fundamental fairness which require that all affected persons be

afforded a reasonable time to prepare for the effective date of a new

rule. United States v. Gavrilovic, 551 F 2d 1099, 1105 (8th Cir.,

1977). The purpose of the requirement for a rule to be published 30

days before the effective date of the rule is to give all affected

persons a reasonable time to prepare for the effective date of a new

rule. Id.

EPA has determined good cause exists to make this Federal Register

notice effective upon publication. The rules made federally enforceable

by this Federal Register notice have been enforceable as a matter of

state law for more than a year. Moreover, the 30 day publication period

would cause undue burdens to the public, affected industry and

permitting authorities. Under Washington's Title V program, Title V

sources must submit Title V applications by June 7, 1995. See WAC 173-

401-500(3)(a). Many existing major stationary sources in Washington

have applied for or have already received regulatory orders under WAC

173-400-091 to limit their potential to emit to less than the major

source thresholds and are relying in good faith on these regulatory

orders to exempt them from the requirements of the Title V operating

permits program. If the federal enforceability of these SIP revisions

is delayed for 30 days, these sources would be in violation of the

requirement to submit Title V applications by June 7, 1995, solely

because the regulatory orders that they have already been issued were

not yet federally enforceable. The imposition of the 30 day delay in

the effective date of these SIP revisions would therefore require

sources to prepare and submit Title V applications that would not be

required once this approval becomes effective in 30 days, require state

and local permitting authorities to expend unnecessary resources for

receiving, logging in and reviewing permit applications and possible

enforcement [[Page 28728]] action for late submittals, and delay the

federal enforceability of the voluntary emission reductions made by

these sources.

Therefore, EPA has determined that good cause exists to make these

SIP revisions immediately effective and that the principals of

fundamental fairness are met because all known affected persons have

been afforded a reasonable time to prepare for the effective date of

these SIP revisions. Accordingly, pursuant to section 553(d)(3) of the

APA, this approval of the Washington SIP is finally effective upon

publication in the Federal Register.

V. Summary of Action

In summary, EPA is approving: WAC 173-400 as in effect on September

20, 1993, except for the following sections: -040(1)(c) and (d); -

040(2); -040(4); the second paragraph of -040(6); the exception

provision in -050(3); -070(7); -075; -112(8); -113(5); -114; -115; -

120; -131; -136; -141; and -180.

EPA is disapproving: WAC 173-400-040(1)(c) and (d), the second

paragraph of -040(6), the exception provision in -050(3), -120, -131, -

136, -141, and -180.

EPA is taking no action on: WAC 173-400-040(2), -040(4), -070(7), -

075, and -115. Note that WAC 173-400-112(8), WAC 173-400-113(5), and

WAC 173-400-114 have not been submitted for inclusion in the Washington

SIP.

EPA is also approving pursuant to the authority of section 112(l)

of the Act: WAC 173-400-091 as in effect on September 20, 1993.

Administrative Review

This action has been classified as a Table 3 action by the Regional

Administrator under the procedures published in the Federal Register on

January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993

memorandum from Michael H. Shapiro, Acting Assistant Administrator for

Air and Radiation. The OMB has exempted this regulatory action from

E.O. 12866 review.

EPA's disapproval of the State request under section 110 and

subchapter I, Part D of the CAA does not affect any existing

requirements applicable to small entities. Any pre-existing Federal

requirements remain in place after this disapproval. Federal

disapproval of the State submittal does not affect its State

enforceability. Moreover, EPA's disapproval of the submittal does not

impose any new Federal requirements. Therefore, EPA certifies that this

disapproval action does not have a significant impact on a substantial

number of small entities because it does not impose any new Federal

requirements.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any SIP. Each request for revision to the SIP shall be

considered separately in light of specific technical, economic and

environmental factors and in relation to relevant statutory and

regulatory requirements.

Under Section 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in estimated

costs to State, local, or tribal governments in the aggregate; or to

the private sector, of $100 million or more. Under Section 205, EPA

must select the most cost-effective and least burdensome alternative

that achieves the objectives of the rule and is consistent with

statutory requirements. Section 203 requires EPA to establish a plan

for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

EPA has determined that the approval action promulgated today does

not include a Federal mandate that may result in estimated costs of

$100 million or more to either State, local, or tribal governments in

the aggregate, or to the private sector. This Federal action approves

pre-existing requirements under State or local law, and imposes no new

Federal requirements. Accordingly, no additional costs to State, local,

or tribal governments, or to the private sector, result from this

action.

Under section 307(b)(1) of the Clean Air Act, petitions for

judicial review of this action must be filed in the United States Court

of Appeals for the appropriate circuit by August 1, 1995. Filing a

petition for reconsideration by the Administrator of this final rule

does not affect the finality of this rule for the purposes of judicial

review nor does it extend the time within which a petition for judicial

review may be filed and shall not postpone the effectiveness of such

rule or action. This action may not be challenged later in proceedings

to enforce its requirements. (See section 307(b)(2), 42 U.S.C.

7607(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Hydrocarbons, Incorporation by reference, Intergovernmental relations,

Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and

recordkeeping requirements, Sulfur oxides, and Volatile organic

compounds.

Dated: May 24, 1995.

Chuck Clarke,

Regional Administrator.

Note: Incorporation by reference of the Implementation Plan for

the State of Washington was approved by the Director of the Office

of Federal Register on July 1, 1982.

Part 52, chapter I, title 40 of the Code of Federal Regulations is

amended as follows:

PART 52--[AMENDED]

1. The authority citation for Part 52 continues to read as follows:

Authority: 42 U.S.C. 7401-7671q.

Subpart WW--Washington

2. Section 52.2470 is amended by adding paragraph (c)(54) to read

as follows:

Sec. 52.2470 Identification of plan.

* * * * *

(c) * * *

(54) On March 8, 1994, the Director of WDOE submitted to the

Regional Administrator of EPA numerous revisions to the State of

Washington Implementation Plan which included updated new source review

regulations and provisions for voluntary limits on a source's potential

to emit. The revisions were submitted in accordance with the

requirements of section 110 and Part D of the Clean Air Act

(hereinafter the Act).

(i) Incorporation by reference.

(A) March 8, 1994 and May 8, 1995 letters from WDOE to EPA

submitting requests for revisions to the Washington SIP consisting of

an amended state regulation; Chapter 173-400 Washington Administrative

Code General Regulations for Air Pollution Sources, adopted on August

20, 1993, in its entirety with the exception of the following sections:

-040(1)(c) and (d); -040(2); -040(4); the second paragraph of -040(6);

the exception provision in -050(3); -070(7); -075; -112(8); -113(5); -

114; -115; -120; -131; -136; -141; and -180.

3. Subpart WW is further amended by adding a new Sec. 52.2495 to

read as follows:

Sec. 52.2495 Voluntary limits on potential to emit

Terms and conditions of regulatory orders issued pursuant to WAC

173-400-091 ``Voluntary limits on emissions'' and in accordance with

the provisions of WAC 173-400-091, WAC 173-400-105 ``Records,

monitoring, and [[Page 28729]] reporting,'' and WAC 173-400-171

``Public involvement,'' shall be applicable requirements of the

federally-approved Washington SIP and Section 112(l) program for the

purposes of section 113 of the Clean Air Act and shall be enforceable

by EPA and by any person in the same manner as other requirements of

the SIP and Section 112(l) program. Regulatory orders issued pursuant

to WAC 173-400-091 are part of the Washington SIP and shall be

submitted to EPA Region 10 in accordance with the requirements of

Secs. 51.104(e) and 51.326.

[FR Doc. 95-13516 Filed 6-1-95; 8:45 am]

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