Approval and Promulgation of Implementation Plans: Washington

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[WA41-1-7114a; FRL-5283-6]

Approval and Promulgation of Implementation Plans: Washington

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: Environmental Protection Agency (EPA) approves the Regulations

of the Northwest Air Pollution Authority (NWAPA) for the control of air

pollution in Island, Skagit, and Whatcom Counties, Washington, as

revisions to the Washington State Implementation Plan (SIP). These

Regulations were submitted by the Director of the Washington State

Department of Ecology (WDOE) on February 14, 1995. In accordance with

state law, NWAPA rules must be at least as stringent as the WDOE

statewide rules.

DATES: This action is effective on December 26, 1995 unless adverse or

critical comments are received by November 24, 1995. If the effective

date is delayed, timely notice will be published in the Federal

Register.

ADDRESSES: Written comments should be addressed to: Montel Livingston,

SIP Manager, Air Programs Branch (AT-082), EPA, 1200 Sixth Avenue,

Seattle, Washington 98101.

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, DC 20460. Copies of

material submitted to EPA may be examined during normal business hours

at the following locations: EPA, Region 10, Air Programs Branch, 1200

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

Department of Ecology, P.O. Box 47600, Olympia, Washington 98504.

FOR FURTHER INFORMATION CONTACT: Stephanie Cooper, Air Programs Branch

(AT-082), EPA, Region 10, Seattle, Washington 98101, (206) 553-6917.

SUPPLEMENTARY INFORMATION:

I. Background

On February 14, 1995, the Director of WDOE submitted to EPA Region

10 revised and updated regulations for NWAPA affecting Island, Skagit,

and Whatcom Counties. NWAPA and WDOE held a joint public hearing on

October 13, 1994 to receive public comment on the revisions to NWAPA's

rules and the submittal to EPA as a revision to the Washington SIP.

These regulations became effective as a matter of state law on November

13, 1994.

These revisions to NWAPA's rules provide clarification and

corrections to previously adopted NWAPA rules in order to reflect

changes in the Washington Clean Air Act, Washington Administrative

Codes (WAC), etc., and to raise fees that reflect the added costs of

performing these duties. The amended rules cover such subjects as

criminal and civil penalties, notice of construction procedures,

registration classes, volatile organic compounds (VOC) controls, and

others (please see Description of Plan Revisions, below).

[[Page 54440]]

II. Description of Plan Revisions

This rulemaking action approves, as part of the Washington SIP,

certain portions of NWAPA's Regulations related to the control of

criteria pollutants under section 110 of the Act. State law requires

that the regulations of local air pollution control agencies be at

least as stringent as state law (WAC-400-020(2)). In this rulemaking,

EPA is approving the following sections:

104.1--Adoption of State Laws and Rules

132--Criminal Penalty

133--Civil Penalty

200--Definitions

300--Notice of Construction when Required

301--Information Required for Notice of Construction and Application

for Approval, Public Notice, Public Hearing

302--Issuance of Approval or Order

322--Exemptions from Registration

324--Fees (except for section 324.121)

340--Report of Breakdown and Upset

451--Emission of Air Contaminant-Visual Standard

462--Emission of Sulfur Compounds

580--Volatile Organic Compound Control

The following discussion highlights elements of NWAPA's rules that

EPA is approving: Section 104.1 allows NWAPA to position itself as the

primary enforcement agency for the three counties under its

jurisdiction by incorporating by reference the latest versions of the

Washington State Clean Air Act and the Washington State Administrative

Procedures Act, as well as other state rules. Sections 132 and 133--

Criminal Penalty and Civil Penalty, respectively, were amended to be

consistent with the enforcement requirements of the federal Title V air

operating permit program (40 CFR 70.11(a)(3)). The criminal penalty

language was reworded to clarify that the maximum fine for criminal

violations is ten thousand dollars per day per violation, or by

imprisonment in the county jail for not more than one year, or both.

Civil penalties have been adjusted from $10,660 to $11,000 per day per

violation. Definitions, section 200, were revised to make terms

consistent with state and federal definitions, and definitions for

concealment, existing stationary facility, fugitive dust, fugitive

emissions, modification, new source, and others, were added to the

NWAPA regulations. Section 300 was changed to clarify when an

investigation fee is required. Slight typographical errors were

corrected by the amendments to sections 301 and 340. New threshold

levels below which no ``notice of construction'' is required are added

by section 322. New emission units or activities with emissions below

the following levels are exempt: 5 tons per year (tpy) of Carbon

Monoxide, 2 tpy of nitrogen oxides, 2 tpy of sulfur oxides, 2 tpy of

volatile organic compounds, .75 tpy of particulate matter with an

aerodynamic diameter less than or equal to a nominal 10 micrometers

(PM10), 0.03 tpy of lead, and threshold levels for hazardous air

pollutants as defined in WAC Chapter 173-401-531. Inspection fees have

been raised in section 324 for fuel burning equipment, scrubbers,

incinerators, and gasoline stations. Application fees for a ``bubble''

and ``emission reduction credit'' have also been raised. Part of

section 451 was deleted as it was less stringent than state rules.

Both sections 462 and 580 were revised to be consistent with state

rules. Emission of Sulfur Compounds, section 462, now measures sulfur

dioxide/sulfur compound emissions for a sixty consecutive minute

period. Section 580, Volatile Organic Compound Control, was modified to

change the throughput threshold requirements for Stage I vapor control

as well as to revise the definition of a gasoline station.

In its February 14, 1995 submission, NWAPA did not submit its rules

regarding Solid Fuel Burning Device Standards (section 480); Outdoor

Burning (section 501); Grass Seed Fields (section 504); Refuse

Burning--Time Restriction (section 511); Odor Control Measures (section

535); Concealment and Masking (section 540); and Asbestos Control

Standards (section 570) for inclusion in the SIP. Therefore, statewide

rules for open burning and concealment and masking apply to NWAPA's

jurisdiction.

III. Summary of EPA Action

In this action, EPA approves numerous additions to the NWAPA rules

as revisions to the Washington SIP. Specifically, EPA approves the

following sections: 104.1, 132, 133, 200, 300, 301, 302, 322, 324

(except for section 324.121), 340, 451, 462, and 580. EPA is taking no

action on section 324.121 because it addresses fees for sources subject

to the state's Title V air operating permit program and has been

approved as part of that program. See 59 FR 55813 (November 9, 1994).

IV. Administrative Review

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. 5 U.S.C. 603 and 604.

Alternatively, EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000.

SIP approvals under section 110 and subchapter I, Part D of the

Clean Air Act (CAA) do not create any new requirements, but simply

approve requirements that the state is already imposing. Therefore,

because the federal SIP-approval does not impose any new requirements,

I certify that it does not have a significant impact on any small

entities affected. Moreover, due to the nature of the Federal-State

relationship under the CAA, preparation of a regulatory flexibility

analysis would constitute Federal inquiry into the economic

reasonableness of State action. The CAA forbids EPA to base its actions

concerning SIPs on such grounds. Union Electric Co. v. U.S.E.P.A., 427

U.S. 246, 256-66 (S.Ct. 1976); 42 U.S.C. 7410(a)(2).

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 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.

The EPA has reviewed this request for revision of the federally-

approved SIP for conformance with the provisions of the 1990 Clean Air

Act Amendments enacted on November 15, 1990. The EPA has determined

that this action conforms with those requirements.

[[Page 54441]]

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.

This action has been classified as a Table 3 action for signature

by the Regional Administrator under the procedures published in the

Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a

July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for

Air and Radiation. The Office of Management and Budget (OMB) has

exempted this regulatory action from E.O. 12866 review.

The EPA is publishing this action without prior proposal because

the Agency views this as a noncontroversial amendment and anticipates

no adverse comments. However, in a separate document in this Federal

Register publication, the EPA is proposing to approve the SIP revision

should adverse or critical comments be filed. This action will be

effective December 26, 1995 unless, by November 24, 1995 adverse or

critical comments are received.

If the EPA receives such comments, this action will be withdrawn

before the effective date by publishing a subsequent document that will

withdraw the final action. All public comments received will be

addressed in a subsequent final rule based on this action serving as a

proposed rule. The EPA will not institute a second comment period on

this action. Any parties interested in commenting on this action should

do so at this time. If no such comments are received, the public is

advised that this action will be effective December 26, 1995.

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 December 26, 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

Air pollution control, Carbon monoxide, Hydrocarbons, Incorporation

by reference, Ozone, Volatile organic compounds.

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.

Dated: August 8, 1995.

Charles Findley,

Acting Regional Administrator.

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)(56) to read

as follows:

Sec. 52.2470 Identification of plan.

* * * * *

(c) * * *

(56) On February 14, 1995, the Director for the Washington State

Department of Ecology (WDOE) submitted amended regulations for the

Northwest Air Pollution Authority (NWAPA) as a revision to the

Washington State Implementation Plan (SIP).

(i) Incorporation by reference.

(A) The February 7, 1995 letter from the Director of WDOE

submitting the amended NWAPA regulations to the Environmental

Protection Agency (EPA); the Northwest Air Pollution Authority

Regulations (approving sections 104.1, 132, 133, 200, 300, 301, 302,

322, 324 (except for 324.121), 340, 451, 462, 580) adopted on February

10, 1995.

[FR Doc. 95-26200 Filed 10-23-95; 8:45 am]

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