02-30465. Clean Air Act Approval of Revision to Operating Permits Program in Washington

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is taking final action to approve, as a revision to Washington's title V air operating permits program, revisions to Washington's regulations for insignificant emissions units and other minor revisions to Washington's title V regulations. In a notice of deficiency published in the Federal Register on January 2, 2002 (67 FR 73), EPA notified Washington of EPA's finding that Washington's provisions for insignificant emissions units do not meet minimum Federal requirements for program approval. Final approval of this program revision resolves the deficiency identified in the Notice of Deficiency.

EFFECTIVE DATE:

January 2, 2003.

ADDRESSES:

Copies of Washington's submittal and other supporting information used in developing this action are available for inspection during normal business hours at the U.S. Environmental Protection Agency, Region 10, 1200 Sixth Avenue, Seattle, Washington, 98101. 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:

Jeff Kenknight, Office of Air Quality (OAQ-107), U.S. Environmental Protection Agency, Region 10, 1200 Sixth Avenue, Seattle, Washington 98101, [phone].

SUPPLEMENTARY INFORMATION:

I. Background

The Clean Air Act (CAA) requires all State and local permitting authorities to develop operating permits programs that meet the requirements of title V of the Act, 42 U.S.C. 7661-7661f, and its implementing regulations, 40 CFR part 70. Washington's operating permits program was submitted in response to this directive. EPA granted interim approval to Washington's air operating permits program on November 9, 1994 (59 FR 55813). EPA repromulgated final interim approval of Washington's operating permits program on one issue, along with a notice of correction, on December 8, 1995 (60 FR 62992).

Washington's title V operating permits program is implemented by the Washington Department of Ecology (Ecology), the Washington Energy Facility Site Evaluation Commission (EFSEC), and seven local air pollution control authorities: The Benton Clean Air Authority (BCAA); the Northwest Air Pollution Authority (NWAPA); the Olympic Regional Clean Air Authority (ORCAA); the Puget Sound Clean Air Agency (PSCAA); the Spokane County Air Pollution Control Authority (SCAPCA); the Southwest Clean Air Agency (SWCAA); and the Yakima Regional Clean Air Authority (YRCAA). After these State and local agencies revised their operating permits programs to address the conditions of the interim approval, EPA promulgated final full approval of Washington's title V operating permits program on August 13, 2001 (66 FR 42439).

On May 15, 2002, Ecology proposed revisions to its regulations for insignificant emissions units (IEU), as well as other minor revisions to its title V regulations. The proposed revisions to Ecology's IEU regulations were intended to resolve a deficiency in Washington's title V program identified by EPA in a notice of deficiency published in the Federal Register on January 2, 2002 (67 FR 73). On June 28, 2002, EPA proposed to approve Ecology's proposed revisions to its title V regulations at the same time that Ecology was considering and taking public comment on the proposed changes. See 67 FR 43575. The public comment period on the Ecology regulations ended on June 21, 2002. In response to comments received by Ecology during that public comment process, Ecology made minor changes to its proposed title V revisions. On September 26, 2002, Ecology submitted the final revisions to its title V regulations and asked EPA to give final approval to the revisions.

EPA received no comments on its proposal to approve Ecology's proposed revisions to its title V regulations. EPA has reviewed Ecology's final submittal and has determined that the minor changes made by Ecology in response to public comment at the state level do not change the substance of the regulatory revisions proposed by Ecology and continue to meet the requirements of part 70. Accordingly, EPA is taking final action to approve Ecology's final revisions to its IEU provisions, as well as the other minor revisions to its title V regulations.

The version of WAC 173-401-530 (Ecology's IEU provision) finalized by Ecology is identical to the proposed rule submitted to EPA in May 2002. Ecology did make a minor change to the definition of “continuous compliance,” which is used in the IEU provision as well as elsewhere in Ecology's title V regulations in describing the compliance certification obligations of permittees. The definition of “continuous compliance” proposed by Ecology was identical to the definition in the instructions to the standard annual compliance certification form developed by EPA for use by permittees subject to the Federal operating permits program. See http://www.epa.gov/​oar/​oaqps/​permits/​p71forms.html. Under that definition, a permittee could certify continuous compliance if there were no “deviations and no other information that indicates deviations, except for malfunctions or upsets during which compliance is not required.” The final definition adopted by Ecology states that a permittee could certify continuous compliance if there were no “deviations and no other information that indicates deviations, except for unavoidable excess emissions or other operating conditions during which compliance is not required.” Ecology has clarified that nothing in the final definition of “continuous compliance” it adopted was intended to take a position on whether compliance is or is not required during unavoidable excess emissions or other operating conditions. EPA therefore continues to believe that the definition of “continuous compliance” is approvable. As noted by EPA in the proposal and by Ecology during its rulemaking process, however, Ecology would be required to later revise its definition of “continuous compliance” if EPA later adopts a definition of this term after notice and comment rulemaking and Ecology's definition is not consistent with the Federal definition. See 67 FR 43577.

Ecology also added a sentence to the proposed definition of “intermittent compliance,” which is also used in describing the compliance certification obligations of permittees. The added sentence clarifies that a certification of intermittent compliance is appropriate where the monitoring data or other information shows there are periods of noncompliance or periods of time during which monitoring required by the permit was not performed or recorded. EPA finds this definition approvable, subject again to the qualification that if EPA later adopts a definition of “intermittent compliance” after notice and comment rulemaking and if the Ecology definition is not consistent with the Federal definition, Ecology would be required to later revise its definition.

Ecology also made a further change to the definition of “major source” in its final title V revisions. See WAC 173-401-200. In the final rule adopted by Ecology, the definition of “major source” is consistent with EPA's recent amendments to the definition of “major source” in part 70 in all respects. See 66 FR 59161 (November 27, 2001). As originally proposed, the Ecology definition was more stringent than EPA's definition in one respect. See 67 FR 43577. Because the final definition of “major source” adopted by Ecology is consistent with the definition in part 70, EPA continues to believe that Ecology's final change to the definition of “major source” is approvable.

Finally, Ecology made a minor change to its proposed revision to the time for reporting of deviations that do not represent a potential threat to human health or safety.^[1] See WAC 173-401-615(3)(b). As proposed, such a deviation was required to be reported no later than 30 days after the end of the month during which the deviation is discovered or as part of routine emission monitoring reports, whichever occurred first. In the final version, the rule requires such deviations to be reported no later than 30 days after the end of the month during which the deviation is discovered. This is still more stringent that the previous version of Ecology's rule which gave permitting authorities the discretion to require reporting of “other deviations” (that is, deviations that do not represent a potential threat to human health or safety) either no later than 30 days after the end of the month during which the deviation is discovered or as part of routine emission monitoring reports. EPA therefore continues to believe that the final rule adopted by Ecology is consistent with the requirements of part 70.

II. Final Action

EPA is taking final action to approve as a revision to Ecology's title V air operating permits program revisions to Ecology's regulations for IEUs, specifically, revisions to WAC 173-401-530(2)(c) and the deletion of WAC 173-401-530(2)(d). EPA has determined that these changes meet the requirements of title V and part 70 relating to IEUs, and adequately address the deficiency identified in the notice of deficiency published in the Federal Register on January 2, 2002 (67 FR 73). EPA is also approving the addition of definitions for “continuous compliance” and “intermittent compliance,” the change to the definition of “major source,” changes to clarify that the use of a standard application form is not required if all required information is provided by the applicant, and a change to the time frame for the prompt reporting of permit deviations. Because the revisions chapter 173-401 apply throughout the State of Washington, this approval applies to all State and local agencies that implement Washington's operating permits program. As discussed above, those agencies include Ecology, EFSEC, BCAA, NWAPA, ORCAA, PSCAA, SCAPCA, SWCAA, and YRCAA.

Consistent with EPA's proposal to approve these revisions, this approval does not extend to “Indian Country,” as defined in 18 U.S.C. 1151, except with respect to non-trust lands within the 1873 Survey Area of the Puyallup Reservation.^[2] See 66 FR 42439, 42440 (August 13, 2001); 64 FR 8247, 8250-8251 (February 19, 1999); 59 FR 42552, 42554 (August 18, 1994).

III. Administrative Requirements

Under Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities because it merely approves State law as meeting Federal requirements and imposes no additional requirements beyond those imposed by State law. This rule does not contain any unfunded mandates and does not significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4) because it approves pre-existing requirements under State law and does not impose any additional enforceable duties beyond that required by State law. This 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, “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000). This rule also does not have Federalism implications because it will 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, “Federalism” (64 FR 43255, August 10, 1999). The rule merely approves existing requirements under State law, and does not alter the relationship or the distribution of power and responsibilities between the State and the Federal government established in the Clean Air Act. This 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) or Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001), because it is not a significantly regulatory action under Executive Order 12866. This action will not impose any collection of information subject to the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., other than those previously approved and assigned OMB control number 2060-0243. For additional information concerning these requirements, see 40 CFR part 70. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

In reviewing State operating permit programs submitted pursuant to title V of the Clean Air Act, EPA will approve State programs provided that they meet the requirements of the Clean Air Act and EPA's regulations codified at 40 CFR part 70. 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 State operating permit program for failure to use VCS. It would, thus, be inconsistent with applicable law for EPA, when it reviews an operating permit program, to use VCS in place of a State program that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

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 January 31, 2003. 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 CAA section 307(b)(2).

List of Subjects in 40 CFR Part 70

• Environmental protection
• Administrative practice and procedure
• Air pollution control
• Intergovernmental relations
• Operating permits
• Reporting and recordkeeping requirements

Dated: November 20, 2002.

Ronald A. Kreizenbeck,

Deputy Regional Administrator, Region 10.

40 CFR part 70 is amended as follows:

PART 70—[AMENDED]

1. The authority citation for part 70 continues to read as follows:

Authority: 42 U.S.C. 7401, et seq.

2. In appendix A to part 70, the entry for Washington is revised to read as follows:

Appendix A to Part 70—Approval Status of State and Local Operating Permits Programs

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Washington

(a) Department of Ecology (Ecology): Submitted on November 1, 1993; interim approval effective on December 9, 1994; revisions submitted on June 5, 1996, October 3, 1996, August 25, 1998, and May 24, 1999; full approval effective on September 12, 2001; revision submitted on September 26, 2002; revision approved January 2, 2003.

(b) Energy Facility Site Evaluation Council (EFSEC): Submitted on November 1, 1993; interim approval effective on December 9, 1994; revisions submitted on June 5, 1996, October 3, 1996, August 25, 1998, and May 24, 1999; full approval effective on September 12, 2001; revision submitted on September 26, 2002; revision approved January 2, 2003.

(c) Benton Clean Air Authority (BCAA): Submitted on November 1, 1993; interim approval effective on December 9, 1994; revisions submitted on June 5, 1996, October 3, 1996, August 25, 1998, and May 24, 1999; full approval effective on September 12, 2001; revision submitted on September 26, 2002; revision approved January 2, 2003.

(d) Northwest Air Pollution Authority (NWAPA): Submitted on November 1, 1993; interim approval effective on December 9, 1994; revisions submitted on June 5, 1996, October 3, 1996, August 25, 1998, and May 24, 1999; full approval effective on September 12, 2001; revision submitted on September 26, 2002; revision approved January 2, 2003.

(e) Olympic Regional Clean Air Authority (ORCAA): Submitted on November 1, 1993; interim approval effective on December 9, 1994; revisions submitted on June 5, 1996, October 3, 1996, August 25, 1998, and May 24, 1999; full approval effective on September 12, 2001; revision submitted on September 26, 2002; revision approved January 2, 2003.

(f) Puget Sound Clean Air Agency (PSCAA): Submitted on November 1, 1993; interim approval effective on December 9, 1994; revisions submitted on June 5, 1996, October 3, 1996, August 25, 1998, and May 24, 1999; full approval effective on September 12, 2001; revision submitted on September 26, 2002; revision approved January 2, 2003.

(g) Spokane County Air Pollution Control Authority (SCAPCA): Submitted on November 1, 1993; interim approval effective on December 9, 1994; revisions submitted on June 5, 1996, October 3, 1996, August 25, 1998, and May 24, 1999; full approval effective on September 12, 2001; revision submitted on September 26, 2002; revision approved January 2, 2003.

(h) Southwest Clean Air Agency (SWCAA): Submitted on November 1, 1993; interim approval effective on December 9, 1994; revisions submitted on June 5, 1996, October 3, 1996, August 25, 1998, and May 24, 1999; full approval effective on September 12, 2001; revision submitted on September 26, 2002; revision approved January 2, 2003.

(i) Yakima Regional Clean Air Authority (YRCAA): Submitted on November 1, 1993; interim approval effective on December 9, 1994; revisions submitted on June 5, 1996, October 3, 1996, August 25, 1998, and May 24, 1999; full approval effective on September 12, 2001; revision submitted on September 26, 2002; revision approved January 2, 2003.

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Footnotes

1.  Reporting of deviations that represent a potential threat to human health and safety continues to be required as soon as possible, but in no case later than twelve hours after the deviation is discovered. WAC 173-401-615(3)(b).

2.  As these terms are defined in the Agreement dated August 27, 1988, among the Puyallup Tribe of Indians, local governments in Pierce County, the State of Washington, the United States, and certain private property owners.