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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 63

[WA22-1-6362; FRL-5157-4]

Approval and Promulgation of Implementation Plans, Washington;

Approval of Section 112(l) Authority; Preconstruction and Operating

Permits; Washington

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA invites public comment on its proposal to approve in part

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

[[Page 9803]] 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 also

proposing to take no action on a number of provisions which are

unrelated to the purposes of the implementation plan. EPA also invites

public comment on its proposal to approve certain WDOE rules, and

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

and Southwest Air Pollution Control Authority (SWAPCA), submitted to

EPA by the Director of WDOE on September 29, 1994, 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.

DATES: Comments must be postmarked on or before March 24, 1995.

ADDRESSES: Written comments should be addressed to: David Bray, Permits

Programs Manager, EPA, Air & Radiation Branch (AT-082), 1200 Sixth

Avenue, Seattle, Washington 98101.

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, 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.

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

On November 15, 1990, Congress amended the Clean Air Act to

require, among other things, revisions to state implementation plans

(SIPs) to attain and maintain the National Ambient Air Quality

Standards (NAAQS) in areas which violate those standards (nonattainment

areas). Under the provisions of the Act, revisions to title I, part D

(nonattainment area) new source review (NSR) rules were required to be

submitted by June 30, 1992 for PM-10 nonattainment areas, by November

15, 1992 for most ozone and carbon monoxide nonattainment areas, and by

November 15, 1993 for the remainder of the ozone and carbon monoxide

nonattainment areas. 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 Clean Air Act Amendments of 1990 also established a new title V

which requires States to develop operating permit programs for most

stationary sources. While title V operating permit programs are not

intended to be part of the SIP, many provisions of the SIP will

interact closely with the title V operating permit program. As such,

most States will be revising provisions of their SIPs to facilitate and

improve the relationship between their SIP and their title V operating

permit program. The WDOE amended several 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.

Section 112(l) of the Act also enables the EPA to approve State air

toxics rules or programs for the implementation and enforcement of

emission standards and other requirements for hazardous air pollutants.

Approval is granted by the EPA if the Agency finds that: (1) The State

rule or program is ``no less stringent'' than the corresponding Federal

program or rule; (2) the State program is supported by adequate

authority and resources; (3) the schedule for implementation and

compliance of emission standards and other requirements is sufficiently

expeditious; and (4) the rules are otherwise in compliance with Federal

guidance.

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 PSAPCA and 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.

II. Discussion of SIP Submittal

A. Description of SIP Submittal

On March 8, 1994, the Director of the WDOE submitted all of Chapter

173-400 WAC ``General Regulations for Air Pollution Sources'' (with the

exception of WAC 173-400-114) as amended on August 20, 1993, as a

revision to the Washington SIP. The amended rules include changes to

the following sections: WAC 173-400-030 ``Definitions;'' WAC 173-400-

040 ``General standards for maximum emissions;'' WAC 173-400-100

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

reporting;'' WAC 173-400-110 ``New source review (NSR);'' 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);'' WAC 173-

400-171 ``Public involvement;'' WAC 173-400-180 ``Variance;'' WAC 173-

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

amended rules include the following new sections which are revised and

recodified provisions from the previous rules: WAC 173-400-112

``Requirements for new sources in nonattainment areas;'' and WAC 173-

400-113 ``Requirements for new sources in attainment or unclassifiable

areas.'' Finally, the amended rules also include the following entirely

new sections: WAC 173-400-081 ``Startup and shutdown;'' WAC 173-400-091

``Voluntary limits on emissions;'' and WAC 173-400-107 ``Excess

emissions.''

With the exceptions discussed in Section II.C. and II.D. below, EPA

is proposing to approve the submitted version of Chapter 173-400 WAC as

a revision to the Washington SIP. Note that those provisions of WAC

173-400 which were not revised on August 20, 1993 and are not discussed

in Sections II.B., II.C., and II.D., below were previously approved by

EPA on January 15, 1993 (58 FR 4578).

B. Discussion of Proposed Approvals

1. New Source Review

The existing provisions related to new source review (NSR) were

extensively revised to meet the new requirements of Title I, Part D of

the Act as set forth in the ``State Implementation Plans: General

Preamble for the Implementation of Title I of the Clean Air Act

Amendments of 1990'' (57 FR 13498, April 16, 1992) and to make the WDOE

rules more consistent with EPA's regulations for new source review

programs in 40 CFR part 51, subpart I Review of New Sources and

Modifications. Specifically:

a. The definitions of the following terms were revised to be

consistent with EPA's definitions: ``actual emissions'' (WAC 173-400-

030(1)), ``allowable emissions'' (WAC 173-400-030(5)), ``best available

control technology [[Page 9804]] (BACT)'' (WAC 173-400-030(9)), ``Class

I area'' (WAC 173-400-030(13)), ``emission standard and emission

limitation'' (WAC 173-400-030(22)), ``major modification'' (WAC 173-

400-030(39)), ``net emission increase'' (WAC 173-400-030(46)), ``new

source'' (WAC 173-400-030(47)), ``significant'' (WAC 173-400-030(67)),

``source'' (WAC 173-400-030(69)), and ``volatile organic compound

(VOC)'' (WAC 173-400-030(81)). EPA finds that these revised definitions

are consistent with the requirements of 40 CFR Part 51, Subpart I, and

therefore proposes to approve them as revisions to the Washington SIP.

b. New definitions of the following terms were added to be

consistent with EPA's regulations: ``federal land manager'' (WAC 173-

400-030(28)), ``mandatory Class I federal area'' (WAC 173-400-030(38)),

``major stationary source'' (WAC 173-400-030(40)), ``modification''

(WAC 173-400-030(43)), ``order'' (WAC 173-400-030(53)), ``order of

approval'' (WAC 173-400-030(54)), and ``stationary source'' (WAC 173-

400-030(74)). EPA finds that these new definitions are consistent with

the requirements of 40 CFR part 51, subpart I, and therefore proposes

to approve them as revisions to the Washington SIP.

c. WAC 173-400-110 ``New Source Review (NSR)'' was revised to

clarify the applicability of the NSR rule and the procedures for

submittal of applications, making completeness determinations and final

determinations, and appeals of orders of approval. The section was also

revised by revoking provisions and replacing them with two new sections

as described below. EPA finds that this revised section is consistent

with the requirements of 40 CFR part 51, subpart I, and therefore

proposes to approve it as a revision to the Washington SIP.

d. A new section WAC 173-400-112 ``Requirements for new sources in

nonattainment areas'' was added which specifies the requirements for

new and modified major and minor stationary sources proposing to locate

in designated nonattainment areas. New and modified minor stationary

sources must comply with all applicable requirements, utilize the best

available control technology (BACT) for all air pollutants, not violate

the requirements for reasonable further progress established in the SIP

and comply with the State's air toxics requirements which EPA is today

proposing to approve pursuant to section 112(l) of the Act (see below).

New and modified major sources must also comply with all applicable

requirements, meet the lowest achievable emission rate (LAER) for the

nonattainment air pollutant and BACT for all other air pollutants,

comply with the requirements for reasonable further progress by

providing adequate offsetting emission reductions from existing sources

in the nonattainment area, demonstrate that all other major sources

owned or operated in the State of Washington are in compliance (or on a

compliance schedule) with applicable requirements, demonstrate through

an analysis of alternatives that the benefits of the project

significantly outweigh the costs imposed as a result of its location in

the nonattainment area, comply with the requirements for prevention of

significant deterioration (PSD) if applicable, comply with the State's

air toxics requirements, and comply with the visibility protection

requirements for mandatory Federal Class I areas.

Section 189(e) of the Act requires part D NSR programs for

PM10 nonattainment areas to treat PM10 precursor emissions in

the same manner as PM10 emissions unless the Administrator has

determined that PM10 precursors do not significantly contribute to

violations of the PM10 NAAQS. However, WAC 173-400-112 does not

address PM10 precursors nor require them to be treated in the same

manner as PM10 emissions. The Administrator has previously made a

determination that PM10 precursors do not significantly contribute

to PM10 violations in the Thurston County, and Seattle, Tacoma,

and Kent PM10 nonattainment areas (see 58 FR 40056 (July 27, 1993)

and 59 FR 44324 (August 29, 1994)). The submitted control strategies

for the Wallula, Spokane, and Yakima PM10 nonattainment areas

contain sufficient information on the relative contribution of

PM10 precursors to the nonattainment problem to enable the

Administrator to determine at this time that PM10 precursors do

not significantly contribute to violations of the PM10 NAAQS in

those three areas. Based on the Administrator's determinations

regarding PM10 precursors in the three remaining PM10

nonattainment areas, EPA finds this new section to be consistent with

the requirements of 40 CFR part 51, subpart I, and title I, part D of

the Act, as set forth in ``State Implementation Plans: General Preamble

for the Implementation of title I of the Clean Air Act Amendments of

1990'' (57 FR 13498 (April 16, 1992)) and therefore proposes to approve

it as a revision to the Washington SIP.

e. A new section WAC 173-400-113 ``Requirements for new sources in

attainment or nonclassifiable areas'' was added which specifies the

requirements for new and modified major and minor stationary sources

located in attainment areas. New and modified minor stationary sources

must comply with all applicable requirements, utilize the best

available control technology (BACT) for all air pollutants, not delay

the attainment date for any nonattainment area nor cause or contribute

to a violation of any ambient air quality standard, and comply with the

State's air toxics requirements. New and modified major stationary

sources must comply with all applicable requirements, utilize the best

available control technology (BACT) for all air pollutants, not delay

the attainment date for any nonattainment area nor cause or contribute

to a violation of any ambient air quality standard, comply with the

requirements for PSD if applicable, comply with the State's air toxics

requirements, and not cause an adverse impact on visibility. EPA finds

that this new section is consistent with the requirements of 40 CFR

part 51, subpart I, and therefore proposes to approve it as a revision

to the Washington SIP.

2. Startup and Shutdown

The new section on ``startup and shutdown'' (WAC 173-400-081)

establishes a requirement that State and local air pollution control

authorities consider any physical constraints on the ability of a

source to comply with a standard whenever an authority promulgates a

technology-based emission standard or makes a control technology

determination. Where the authority determines that the source is not

capable of achieving continuous compliance with a standard during

startup or shutdown, the authority shall establish appropriate

limitations to regulate the performance of the source during startup or

shutdown conditions. The allowable emissions during startup or shutdown

must be accounted for in any demonstration of attainment or maintenance

of ambient air quality requirements. In addition, if such limitations

would allow emissions during periods of startup or shutdown which

exceed those allowed for under the current EPA-approved SIP, such

limitations shall not take effect until approved by EPA as a revision

to the SIP. EPA finds this section to be consistent with EPA

requirements and proposes to approve it as a revision to the Washington

SIP.

3. Excess Emissions

The new section on ``excess emissions'' (WAC 173-400-107)

establishes requirements for reporting periods of excess emissions and

the procedures and criteria for determining, [[Page 9805]] in the

context of an enforcement action, when such excess emissions are

unavoidable and could therefore be excused and not subject to penalty.

The section sets forth separate criteria for periods of excess

emissions resulting from startup or shutdown, scheduled maintenance,

and upsets. EPA finds this section to be consistent with its

requirements for SIP excess emissions rules (February 15, 1983

memorandum entitled ``Policy on Excess Emissions During Startup,

Shutdown, Maintenance, and Malfunctions'' from Kathleen M. Bennett,

Assistant Administrator for Air, Noise and Radiation to Regional

Administrators, Regions 1-X) and therefore proposes to approve it as a

revision to the Washington SIP. Note that this new section replaces the

provisions for excess emissions which were formerly contained in WAC

173-400-105(5) and EPA also proposes to approve the repeal of those

provisions.

4. Voluntary Limits on Emissions

The new section for voluntary limits on emissions (WAC 173-400-091)

provides a mechanism for the owner or operator of a source to apply

for, and obtain, enforceable conditions that limit the source's

potential to emit. Such limitations would be contained in a

``regulatory order'' issued by the WDOE or a local air authority, after

public notice and an opportunity for comment, and would include

monitoring, recordkeeping and reporting requirements sufficient to

ensure that the source complies with the limitations.

On June 28, 1989 (54 FR 27274), EPA published criteria for

approving and incorporating into the SIP regulatory programs for the

issuance of Federally enforceable State operating permits. Permits

issued pursuant to an operating permit program approved into the SIP as

meeting these criteria may be considered Federally enforceable. The EPA

has encouraged States to develop such programs in conjunction with

title V operating permits programs to enable sources to limit their

potential to emit to below the title V applicability thresholds. (See

the guidance document entitled, ``Limitation of Potential to Emit With

Respect to Title V Applicability Thresholds,'' dated September 18,

1992, from John Calcagni, Director, Air Quality Management Division,

Office of Air Quality Planning and Standards (OAQPS), Office of Air and

Radiation, U.S. EPA.) On November 3, 1993, the EPA announced in a

guidance document entitled, ``Approaches to Creating Federally

Enforceable Emissions Limits,'' signed by John S. Seitz, Director,

OAQPS, that this mechanism could be extended to create Federally

enforceable limits for emissions of hazardous air pollutants (HAP) if

the program were approved pursuant to section 112(l) of the Act.

The June 28, 1989 Federal Register notice establishes five criteria

which must be met in order for EPA to approve a State operating permit

program into the SIP: (1) The program must be submitted to and approved

by the EPA; (2) the program must impose a legal obligation on the

operating permit holders to comply with the terms and conditions of the

permit, and permits that do not conform with the June 28, 1989 criteria

or the EPA's underlying regulations shall be deemed not Federally

enforceable; (3) any permit issued under the program must contain terms

and conditions that are at least a stringent as any requirements

contained in the SIP, enforceable under the SIP, or any section 112 or

other CAA requirement, and may not allow for the waiver of any CAA

requirement; (4) any permit issued under the program must contain

conditions that are permanent, quantifiable, and enforceable as a

practical matter; and (5) any permit that is intended to be Federally

enforceable must be issued subject to public participation and must be

provided to the EPA in proposed form on a timely basis.

EPA finds that WAC 173-400-091 meets the requirements for Federally

enforceable State operating permit programs as set forth in the June

28, 1989 Federal Register (54 FR 27274) and proposes to approve it as a

revision to the Washington SIP. Furthermore, EPA proposes that, after

final approval to this section, ``regulatory orders'' issued pursuant

to the EPA-approved WAC 173-400-091, and terms and conditions contained

therein, would 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 this 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, thereafter, rely on ``regulatory

orders'' issued pursuant to this section as a means to limit their

potential to emit criteria pollutants and the pollutants regulated

under the PSD provisions of the SIP in order to avoid requirements

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

requests comment on the appropriateness of making Federally

enforceable, as of the date of EPA approval, the terms and conditions

of an order that was issued prior to EPA's approval of a State or local

rule, provided the order itself complied with all of the requirements

of the EPA-approved rule.

5. Miscellaneous Changes

The remaining changes to WAC 173-400-030 ``Definitions;'' and the

changes to WAC 173-400-040 ``General standards for maximum emissions;''

WAC 173-400-100 ``Registration;'' WAC 173-400-105 ``Records,

monitoring, and reporting;'' WAC 173-400-171 ``Public involvement;'' ``

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

are primarily administrative in nature to conform those sections to

current State statutes and to other provisions of WAC 173-400. EPA

finds these changes to be consistent with EPA's requirements and

proposes to approve the rules as revised.

C. Discussion of Proposed Disapprovals

On January 15, 1993 (58 FR 4578), EPA disapproved numerous

provisions of Chapter 173-400 WAC. These provisions were resubmitted as

part of the March 8, 1994 submittal without the necessary changes to

make them approvable. EPA is therefore proposing to again disapprove

the following provisions. A complete discussion of the deficiencies and

the reasons for disapproval can be found in the September 28, 1992

Notice of Proposed Rulemaking (57 FR 44530).

EPA is proposing to disapprove WAC 173-400-040(1) (c) and (d) which

allow for the establishment of alternative opacity limits. EPA is

proposing to disapprove the second paragraph of WAC 173-400-040(6)

which provides an exception to the sulfur dioxide emission limitation.

EPA is proposing to disapprove the exception provision in WAC 173-400-

050(3) which allows for the establishment of an alternative oxygen

correction factor for combustion and incineration sources. EPA is

proposing to disapprove WAC 173-400-180 Variance which allows the WDOE

to grant a variance to the requirements governing the quality, nature,

duration, or extent of discharges of air contaminants. EPA is proposing

to disapprove WAC 173-400-120 Bubble Rules, WAC 173-400-131 Issuance of

Emission Reduction Credits, and WAC 173-400-136 Use of Emission

Reduction Credits as these regulations do not comply with the

requirements of EPA's Final Emissions Trading Policy Statement (51 FR

43814, December 4, 1986).

EPA is proposing to disapprove WAC 173-400-141 Prevention of

Significant Deterioration (PSD) as it does not meet [[Page 9806]] the

requirements of 40 CFR 51.166. WDOE has adopted, by reference, EPA's

PSD regulations (40 CFR 52.21) as in effect on March 3, 1993. However,

significant changes to EPA's regulations became effective on July 20,

1993, August 19, 1993 and June 3, 1994. Note that the PSD provisions of

the Washington SIP are currently disapproved and EPA's PSD regulations

have been promulgated into the Washington SIP (see 40 CFR 52.2497).

Until WAC 173-400-141 is revised to meet current EPA requirements and

is approved by EPA, WDOE will continue to issue PSD permits under a

partial delegation of the EPA PSD permit program.

D. Provisions Unrelated to the SIP

EPA is proposing to take 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, as these provisions are not related to the criteria pollutants

regulated under the SIP.

III. Discussion of Section 112(l) Submittal

A. Description of Submittal

On September 29, 1994, the Director of the WDOE submitted WAC 173-

460 ``Controls for New Sources of Toxic Air Pollutants,'' SWAPCA

Regulation 460 ``Controls for New Sources of Toxic Air Pollutants,''

and PSAPCA Regulation I, Article 6 ``New Source Review'' and Regulation

III, Article 2 ``Review of Toxic Air Contaminant Sources'' for approval

under section 112(l) of the Act. These provisions establish

requirements for preconstruction permits for new and modified sources

of HAP.

B. Discussion of Proposed Approval

1. Permits to Construct for New and Modified Sources of Hazardous Air

Pollutants

a. WAC 173-460 ``Controls for New Sources of Toxic Air Pollutants''

establishes the State of Washington's procedures for regulating new and

modified stationary sources of toxic air pollutants. It is a

comprehensive regulation which covers more pollutants than the 189 HAP

listed in section 112(b) of the Act. In addition, it applies to most

stationary sources of toxic air pollutants and not just major

stationary sources. Finally, it requires both the application of the

best available control technology for toxics (T-BACT) and a

demonstration of the protection of human health and safety.

WAC 173-460-010 ``Purpose'' sets forth the purpose of this

regulation and the policy of the State of Washington in regulating

toxic air pollutants. WAC 173-460-020 ``Definitions'' incorporates all

of the definitions from WAC 173-400 ``General Regulations for Air

Pollution Sources'' and adds several new definitions specific to the

control of toxic air pollutants. WAC 173-460-030 ``Requirements,

applicability, and exemptions'' identifies the source categories

subject to WAC 173-460 and certain general and specific exemptions from

the regulation.

WAC 173-460-040 ``New source review'' supplements the new source

review requirements of WAC 173-400-110 by adding additional

requirements for toxic air pollutant sources. Specifically, it requires

any new or modified source subject to WAC 173-460 to submit a notice of

construction application and obtain a regulatory order approving the

notice of construction prior to commencing construction. This section

requires any new or modified stationary source to comply with all

applicable requirements, utilize T-BACT, and demonstrate that toxic air

pollutant emissions from the source are sufficiently low as to protect

human health and safety from potential carcinogenic and/or other toxic

effects. Source categories for which WDOE has established T-BACT by

rule are exempted from the requirement to demonstrate that their

emissions protect human health and safety. This section also specifies

the process for making preliminary determinations, including public

notice and opportunity for public comment, making final determinations,

and appealing the permitting authority's decision.

WAC 173-460-050 ``Requirement to quantify emissions'' requires new

sources to quantify emissions sufficient to perform the analyses

required by WAC 173-460 and sets forth the procedures for making

appropriate emissions calculations. WAC 173-460-060 ``Control

technology requirements'' establishes the requirement for new and

modified sources of toxic air pollutants to utilize T-BACT and

establishes T-BACT requirements by rule for perchloroethylene dry

cleaners, petroleum solvent dry cleaning systems, chromic acid plating

and anodizing, solvent metal cleaners, and abrasive blasting.

WAC 173-460-070 ``Ambient impact requirement'' requires the owner

or operator of a new or modified source of toxic air pollutants to

demonstrate that emissions from the source are sufficiently low as to

protect human health and safety from potential carcinogenic and/or

other toxic effects. Compliance with this requirement must be

demonstrated using the procedures set forth in WAC 173-460. WAC 173-

460-080 ``Demonstrating ambient impact compliance'' requires the owner

or operator of a new or modified air toxics source to complete an

analysis which demonstrates compliance with the acceptable source

impact levels (ASIL) established in WAC 173-460. The analysis must

utilize dispersion modeling techniques in accordance with EPA

guidelines, unless the source qualifies for using specified small

quantity emission rate tables.

WAC 173-460-090 ``Second tier analysis'' provides an alternative

approach for demonstrating acceptable impacts if the owner or operator

of a proposed new source or modification could not demonstrate

compliance with the acceptable source impact levels using the

procedures specified in WAC 173-460-080. This section allows the owner

or operator of a new or modified source to petition WDOE to perform a

second tier analysis evaluation to determine a means of compliance with

WAC 173-460-070 and -080 by establishing allowable emissions for the

source. A second tier analysis may be requested when a source wishes to

more accurately characterize risks, to justify risk greater than

acceptable source impact levels, or to otherwise modify assumptions to

more accurately represent risks. The WDOE may approve emissions of air

toxics from a source where ambient concentrations would exceed

acceptable source impact levels only if it determines that T-BACT is

utilized and that emissions of certain air toxics are not likely to

result in an increased cancer risk of more than one in one-hundred

thousand. If the WDOE approves the second tier analysis, the notice of

construction approval, following public notice and opportunity for

comment, shall specify allowable emissions consistent with WDOE's

determination and include all requirements necessary to assure that

conditions of WAC 173-460 and WAC 173-400 are met.

WAC 173-460-100 ``Request for risk management decision'' provides

an alternative approach for sources that emit certain toxic air

pollutants that are likely to result in an increased cancer risk of

more than one in one-hundred thousand. The owner or operator of such a

source may request that WDOE make a risk management decision which

would allow such greater risk. To receive such approval, the owner or

[[Page 9807]] operator of such source must propose allowable emission

limits for the source that represent all known available reasonable

control technology, apply all known available air toxic pollution

prevention methods, and demonstrate that the proposal will result in a

greater benefit to the environment as a whole. The source may also

propose measures that would reduce community exposure to comparable

toxic air pollutants. WDOE's decision on any request for a risk

management decision will follow a public notice and opportunity for

public comment, including a public hearing, and appropriate conditions

on emission controls, pollution prevention, or other measures, shall be

included in the approval of the notice of construction.

WAC 173-460-110 ``Acceptable source impact levels'' establishes the

process that the WDOE uses to establish the acceptable source impact

levels in this regulation. WAC 173-460-120 ``Scientific review and

amendment of acceptable source impact levels and lists'' establishes an

ongoing process for the scientific review of information on toxic air

pollutants and acceptable source impact levels. WAC 173-460-130

``Fees'' authorizes the WDOE or local air authority to charge fees for

the review of notices of construction. WAC 173-460-140 ``Remedies''

establishes the civil and criminal enforcement authorities for

violations of WAC 173-460. Finally, WAC 173-460-150 ``Class A toxic air

pollutants: Known, probable and potential human carcinogens and

acceptable source impact levels'' and WAC 173-460-160 ``Class B toxic

air pollutants and acceptable source impact levels'' list the

acceptable source impact levels for the toxic air pollutants regulated

by WAC 173-460. Note that these levels are criteria used in a permit

review process and are not standards which would be enforceable against

sources by either the State or EPA.

EPA is proposing to approve WAC 173-460 under section 112(l) of the

Act in order to recognize regulatory orders approving notices of

construction as Federally enforceable. EPA is also proposing to approve

the provisions of WAC 173-400 that are used to implement the

requirements of WAC 173-460 (specifically, WAC 173-400-110, -112, -113,

and -171) under section 112(l) of the Act. If approved, permitting

authorities would be able to utilize regulatory orders issued pursuant

to WAC 173-460 to establish Federally enforceable limits on potential

to emit for new and modified stationary sources of HAP and to make any

case-by-case MACT determinations required under section 112(g) of the

Act.

The EPA believes it has authority under section 112(l) to approve

State preconstruction review programs for HAP directly under section

112(l). The EPA is therefore proposing approval of WAC 173-460 now so

that permitting authorities in Washington may begin to issue Federally

enforceable regulatory orders as soon as possible.

EPA is aware that WAC 173-460 was not designed specifically to

implement section 112(g) of the Act. Furthermore, EPA has acknowledged

that States may encounter difficulties implementing section 112(g)

prior to promulgation of final EPA regulations (see June 28, 1994

memorandum entitled, ``Guidance for Initial Implementation of Section

112(g),'' signed by John Seitz, Director of the Office of Air Quality

Planning and Standards). However, EPA believes that WAC 173-460 can

serve as a procedural vehicle to make Federally enforceable any case-

by-case MACT determinations required by section 112(g) during the

transition period between title V approval in Washington and EPA

approval of WDOE regulations to implement EPA's final section 112(g)

regulations. EPA believes WAC 173-460 will be adequate for this

transition period because it applies to any new source of HAP and any

modification to an existing source of HAP. As such, any major source

which would be subject to section 112(g) of the Act would be required

by WAC 173-460 to obtain a regulatory order containing a T-BACT

determination. Furthermore, WAC 173-460 allows permitting authorities

to select control measures that would meet MACT, as defined in section

112 of the Act, and after EPA approval, to incorporate these measures

into a Federally enforceable regulatory order.

b. SWAPCA Regulation 460 ``Controls for New Sources of Toxic Air

Pollutants'' adopts WAC 173-460 by reference as a local regulation. As

discussed in Section III.B.1. above, this WAC 173-460 meets all of

EPA's requirements for a permit to construct program to establish

Federally enforceable limitations on new and modified stationary

sources of HAP. EPA is therefore proposing to approve SWAPCA Regulation

460 under the authority of section 112(l) of the Act. Note that EPA is

proposing to approve WAC 173-460 which is applicable statewide and, by

State law, remains in effect in all areas of the State regardless of

any local agency regulations. If SWAPCA Regulation 460 is revised or

revoked, SWAPCA is approved to implement WAC 173-460 as the new source

review program for HAP in SWAPCA's jurisdiction until such time as EPA

approves the revision or revocation of SWAPCA Regulation 460.

c. PSAPCA Regulation I, Article 6 ``New Source Review'' and

Regulation III, Article 2 ``Review of Toxic Air Contaminant Sources''

contain requirements for the construction and modification of

stationary sources of HAP. Regulation I, Article 6 establishes a

comprehensive new source review program that sets forth the process for

submitting a ``Notice of Construction and Application for Approval''

and granting an ``Order of Approval'' or ``Order to Prevent

Construction.'' It applies to new and modified sources of any air

contaminant and includes requirements for the content of applications,

payment of ``Notice of Construction'' review fees, and requirements for

public notice and comment. Furthermore, Section 6.07(c)(3) requires the

utilization of the best available control technology (BACT) for all air

contaminants emitted by new and modified stationary sources.

Regulation III, Article 2 establishes additional requirements for

new and modified sources of toxic air contaminants and applies to all

sources required to submit a ``notice of construction and application

for approval'' under Regulation I, Article 6 except for certain source

categories for which PSAPCA has established T-BACT by rule. Section

2.01 ``Applicability'' states that Article 2 applies to all sources of

toxic air contaminants except for the following source categories for

which PSAPCA has established T-BACT by rule: asbestos removal

operations, chromic acid plating and anodizing tanks, solvent metal

cleaners, perchloroethylene dry cleaning systems, petroleum solvent dry

cleaning systems, gasoline storage and dispensing operations, graphic

arts systems, can and paper coating operations, motor vehicle and

mobile equipment coating operations, polyester/vinylester/gelcoat/resin

operations, coatings and ink manufacturing, and ethylene oxide

sterilizers and aerators. Note that sources exempt from the additional

requirements of this section are not exempted from the requirement of

Regulation I, Article 6 ``New Source Review.'' Section 2.02 ``National

Emission Standards for Hazardous Air Pollutants'' requires all sources

subject to Article 2 to comply with any applicable provision of 40 CFR

part 61. Section 2.03 ``New or Altered Toxic Air Contaminant Sources''

requires that no ``Notice of Construction and Application for

Approval'' shall be issued under Regulation I, Article 6 for a new or

modified source subject to [[Page 9808]] Article 2 unless the source

owner or operator demonstrates that the toxic air contaminant emissions

from the source will not result in the exceedence of any Acceptable

Source Impact Level (ASIL) contained in Appendix A of Regulation III

and does not otherwise cause an air pollution problem.

These PSAPCA regulations have previously been approved as part of

the Washington SIP for control of criteria pollutants. They also meet

all of EPA's requirements for a permit to construct program to

establish Federally enforceable limitations on new and modified

stationary sources of HAP. Furthermore, the WDOE has certified that,

pursuant to Washington State law, the PSAPCA regulations are at least

as stringent as corresponding State regulations, in this case, WAC 173-

460 which EPA is also proposing to approve. EPA is therefore proposing

to approve these PSAPCA regulations under the authority of section

112(l) of the Act. Note that EPA is proposing to approve WAC 173-460

which is applicable statewide and, by State law, remains in effect in

all areas of the State regardless of any local agency regulations. If

PSAPCA Regulation I, Article 6 or Regulation III, Article 2 is revised

or revoked, PSAPCA is approved to implement WAC 173-460 as the new

source review program for HAP in PSAPCA's jurisdiction until such time

as EPA approves the revision or revocation of PSAPCA's regulations.

2. Voluntary Limits on Emissions

The new section for voluntary limits on emissions (WAC 173-400-091)

provides a mechanism for the owner or operator of a source to apply

for, and obtain, enforceable conditions that limit the source's

potential to emit. The provisions of this section are applicable, as a

matter of State law, to any air contaminant and not just the criteria

pollutants regulated under the EPA-approved Washington SIP. In addition

to requesting approval into the SIP, WDOE has also requested approval

of this section under section 112(l) of the Act for the purpose of

creating Federally enforceable limitations on the potential to emit of

HAP. Approval under section 112(l) is necessary because the proposed

SIP approval discussed in Section II.B.4. above only extends to the

control of criteria pollutants. Federally enforceable limits on

criteria pollutants (i.e., VOC's or PM-10) may have the incidental

effect of limiting certain HAP listed pursuant to section 112(b).1

However, section 112 of the Act provides the underlying authority for

controlling all HAP emissions.

\1\ The EPA intends to issue guidance addressing the technical

aspects of how these criteria pollutant limits may be recognized for

purposes of limiting a source's potential to emit of HAP to below

section 112 major source levels.

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

The EPA believes that the five approval criteria for approving

State operating permit programs into the SIP, as specified in the June

28, 1989 Federal Register notice, are also appropriate for evaluating

and approving State operating permit programs under section 112(l) of

the Act. The November 3, 1993 guidance document entitled ``Approaches

to Creating Federally Enforceable Emissions Limits,'' signed by John S.

Seitz, Director, OAQPS, indicated that this mechanism could be extended

to create Federally enforceable limits for emissions of HAP if the

program were approved pursuant to section 112(l) of the Act. The June

28, 1989 notice does not address HAP simply because it was written

prior to the 1990 amendments to section 112, not because it establishes

requirements unique to criteria pollutants. In addition to meeting the

criteria in the June 28, 1989 notice, a State operating permit program

that addresses HAP must meet the statutory criteria for approval under

section 112(l)(5). Section 112(l) allows the EPA to approve a program

only if it: (1) contains adequate authority to assure compliance with

any section 112 standards or requirements; (2) is supported by adequate

resources; (3) provides for an expeditious schedule for assuring

compliance with section 112 requirements; and (4) is otherwise likely

to satisfy the objectives of the Act. The EPA plans to codify the

approval criteria for programs limiting potential to emit of HAP, such

as State operating permit programs, through amendments to Subpart E of

Part 63, the regulations promulgated to implement section 112(l) of the

Act. (See 58 FR 62262, November 26, 1993.) The EPA currently

anticipates that these regulatory criteria, as they apply to State

operating permit programs, will mirror those set forth in the June 28,

1989 Federal Register notice. The EPA currently anticipates that since

State operating permit programs approved pursuant to section 112(l)

prior to the planned Subpart E revisions will have been approved as

meeting these criteria, further approval actions for those programs

will not be necessary.

The EPA believes it has authority under section 112(l) to approve

programs to limit potential to emit of HAP directly under section

112(l) prior to this revision to Subpart E. The EPA is therefore

proposing approval of this section now so that permitting authorities

in Washington may begin to issue Federally enforceable regulatory

orders as soon as possible.

As discussed in Section II.B.4. above, EPA believes that this

section meets the approval criteria specified in the June 28, 1989

Federal Register notice. Regarding the statutory criteria of section

112(l)(5) referred to above, the EPA believes this section contains

adequate authority to assure compliance with section 112 requirements

because the third criterion of the June 28, 1989 notice is met, that

is, because the program does not allow for the waiver of any section

112 requirement. Sources that become minor through a permit issued

pursuant to this program would still be required to meet section 112

requirements applicable to non-major sources. Regarding the requirement

for adequate resources, the EPA believes WDOE has demonstrated that it

can provide for adequate resources to support the synthetic minor

program. Permitting authorities currently cover sources not subject to

title V under a ``registration'' program which assesses fees adequate

to cover the costs of implementing and enforcing the terms of

regulatory orders issued under this section. The EPA will monitor each

permitting authority's implementation of this section to ensure that

adequate resources are in fact available. The EPA also believes that

this section provides for an expeditious schedule for assuring

compliance with section 112 requirements. This program will be used

allow a source to establish a voluntary limit on potential to emit to

avoid being subject to a CAA requirement applicable on a particular

date. Nothing in this section would allow a source to avoid or delay

compliance with a CAA requirement if it fails to obtain an appropriate

Federally enforceable limit by the relevant deadline. Finally, the EPA

believes it is consistent with the intent of section 112 of the Act for

States to provide a mechanism through which sources may avoid

classification as a major source by obtaining a Federally enforceable

limit on potential to emit.

EPA therefore, proposes to approve WAC 173-400-091 under the

authority of section 112(l) of the Act. Furthermore, EPA proposes that,

after final approval to this section, ``regulatory orders'' issued

pursuant to the EPA-approved WAC 173-400-091, and terms and conditions

for HAP contained therein, would 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 this section. However, such orders

would have to [[Page 9809]] 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, thereafter,

rely on ``regulatory orders'' issued pursuant to this section as a

means to limit their potential to emit of HAP in order to avoid

requirements which would otherwise apply to a ``major stationary

source'' of HAP. EPA requests comment on the appropriateness of making

Federally enforceable the terms and conditions of an order that was

issued prior to EPA's approval of a State or local rule, provided the

order itself complied with all of the requirements of the EPA-approved

rule.

IV. Summary of Action

EPA is soliciting public comment on its proposed approval in part

and disapproval in part of revisions to the State of Washington

Implementation Plan. Specifically, EPA is proposing to approve:

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

EPA is proposing to disapprove the following:

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 proposing to take no action on the following:

WAC 173-400-040(2), -040(4), -070(7), -075, and -115.

Note that WAC 173-400-114 was not submitted for inclusion in the

Washington SIP.

EPA is also soliciting public comment on its proposed approval of

certain State and local agency regulations pursuant to the authority of

section 112(l) of the Act. Specifically, EPA is proposing to approve

the following:

WAC 173-460 as in effect on February 14, 1994;

WAC 173-400-091; -110; 112; 113; and 171 as in effect on September

20, 1993;

SWAPCA Regulation 460 as in effect on June 15, 1993; and

PSAPCA Regulation I, Article 6 as in effect on September 17, 1993

and

Regulation III, Articles 1 and 2 as in effect on September 17,

1993.

Interested parties are invited to comment on all aspects of this

proposed approval in part and disapproval in part. Comments should be

submitted in triplicate, to the address listed in the front of this

Notice. Public comments postmarked by March 24, 1995, will be

considered in the final rulemaking action taken by EPA.

Administrative Review

This action has been classified as a Table 2 SIP action by the

Regional Administrator under the procedures published in the Federal

Register on January 19, 1989 (54 FR 2214-2224), as revised by an

October 4, 1993 memorandum from Michael H. Shapiro, Acting Assistant

Administrator for Air and Radiation. The OMB has exempted Table 2 SIP

actions from E.O. 12866 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 CAA

do not create any new requirements, but simply approve requirements

that the State is already imposing. Similarly, approvals of State rules

under section 112(l) do not create any new requirements. Therefore,

because the Federal SIP approval and the section 112(l) approval do not

impose any new requirements, I certify that they do 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).

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 or approval of any State rules pursuant to section

112(l). Each request for revision to any SIP or approval under section

112(l) shall be considered separately in light of specific technical,

economic, and environmental factors and in relation to relevant

statutory and regulatory requirements.

Under Executive Order 12866 (58 FR 51735 (October 4, 1993)), the

Agency must determine whether the regulatory action is ``significant''

and therefore subject to OMB review and the requirements of the

Executive Order. The Order defines ``significant regulatory action'' as

one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or

adversely affect in a material way the economy, a sector of the

economy, productivity, competition, jobs, the environment, public

health or safety, or State, local, or tribal governments or

communities;

(2) Create a serious inconsistency or otherwise interfere with an

action taken or planned by another agency;

(3) Materially alter the budgetary impact or entitlements, grants,

user fees, or loan programs or the rights and obligations of recipients

thereof; or

(4) Raise novel legal or policy issues arising out of legal

mandates, the President's priorities, or the principles set forth in

the Executive Order.

It has been determined that the proposed approval of the State and

local air toxics rules under section 112(l) is not a ``significant

regulatory action'' under the terms of Executive Order 12866 and is

therefore not subject to OMB review.

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

List of Subjects

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.

40 CFR Part 63

Environmental protection, Administrative practice and procedure,

Air pollution control, Hazardous substances, Intergovernmental

relations, [[Page 9810]] Reporting and recordkeeping requirements.

Dated: February 9, 1995.

Chuck Clarke,

Regional Administrator.

[FR Doc. 95-4291 Filed 2-21-95; 8:45 am]

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