[Federal Register Volume 60, Number 236 (Friday, December 8, 1995)]
[Rules and Regulations]
[Pages 62992-62998]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-29994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[AD-FRL-5343-3]
Clean Air Act Final Interim Approval of Operating Permits
Program; Washington
AGENCY: U.S. Environmental Protection Agency (EPA).
ACTION: Final interim approval and notice of correction.
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SUMMARY: EPA is repromulgating final interim approval of one element of
the State of Washington's title V air operating permits program. On
November 9, 1994, EPA granted interim approval to Washington's
operating permits program. 59 FR 55813 (November 9, 1994). One of the
bases for granting Washington's program interim rather than full
approval was that EPA determined that Washington's exemption for
``insignificant emission units'' exceeded the exemption authorized for
such units under the Clean Air Act. A coalition of industries filed a
petition for review of EPA's decision to condition full approval on
changes to Washington's treatment of insignificant emission units. Upon
EPA's request for a voluntary remand, the Court remanded this interim
approval issue to EPA for reconsideration. EPA continues to believe
that Washington has impermissibly expanded the exemption for
insignificant emission units and therefore again conditions full
approval of the Washington operating permits program on changes to
Washington's treatment of insignificant emission units.
EPA is also approving a change to the jurisdiction of the Benton
County Clean Air Authority.
Finally, EPA is correcting the date for expiration of the interim
approval and the due date of the required submission addressing the
interim approval issues.
EFFECTIVE DATE: January 8, 1996.
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 address indicated.
FOR FURTHER INFORMATION CONTACT: Elizabeth Waddell, 1200 Sixth Avenue,
Seattle, Washington 98101.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
A. Introduction
As required under title V of the 1990 Clean Air Act Amendments
(sections 501-507 of the Clean Air Act (``the Act'')), EPA has
promulgated rules which define the minimum elements of an approvable
State operating permits program and the corresponding standards and
procedures by which the EPA will approve, oversee, and withdraw
approval of State operating permits programs (see 57 FR 32250 (July 21,
1992)). These rules are codified at 40 Code of Federal Regulations
(CFR) Part 70. Title V requires States to develop, and submit to EPA,
programs for issuing these operating permits to all major stationary
sources and to certain other sources.
The Act requires that States develop and submit these programs to
EPA by November 15, 1993, and that EPA act to approve or disapprove
each program within 1 year after receiving the submittal. EPA's program
review occurs pursuant to section 502 of the Act and the part 70
regulations, which together outline criteria for approval or
disapproval. Where a program substantially, but not fully, meets the
requirements of part 70, EPA may grant the program interim approval for
a period of up to 2 years. If EPA has not fully approved a program by 2
years after the November 15, 1993 date, or by the end of an interim
program, it must establish and implement a Federal program.
B. Previous Action on Washington's Program
Washington submitted its operating permits program to EPA in
November 1993. In November 1994, EPA granted interim approval to
Washington's program and conditioned full approval on, among other
things, revisions to Washington's regulations pertaining to the
treatment of insignificant emission units (IEUs).\1\ See 59 FR 55813
(November 9, 1994). On January 9, 1995, the Western States Petroleum
Association, Northwest Pulp & Paper Association, Aluminum Company of
America, Columbia Aluminum Corporation, Intalco Aluminum Corporation,
Kaiser Aluminum & Chemical Corporation and Vanalco Inc. (collectively,
``Petitioners'') filed a petition with the United States Court of
Appeals for the Ninth Circuit seeking review of the conditions in EPA's
final interim approval of Washington's operating permits program.
Western States Petroleum Association, et al. v. EPA, et al., No. 95-
70034 (9th Cir., Jan. 6, 1995). In their petition and subsequent brief,
Petitioners claimed that EPA had exceeded its authority in requiring
Washington to revise its IEU rules as a condition of full approval and
that this condition was arbitrary, capricious, an abuse of discretion,
and not otherwise in accordance with the law. Petitioners' brief
clarified that Petitioners were challenging only EPA's requirement that
Washington revise its IEU rules to obtain full approval and did not
challenge any of the four other conditions for full approval. The State
of Washington filed a brief as intervenor in the matter.
\1\ For the purpose of this action, ``IEU'' refers to activities
and emission units that are defined as insignificant under WAC 173-
401-200(16) and 173-401-530, when used in discussing Washington's
program, and refers to the generic concept under part 70, when used
in discussing the requirements of part 70.
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In reviewing the issue, EPA determined that the Petitioners and the
State of Washington had raised a substantial question concerning EPA's
interpretation of the IEU provisions of part 70 and the specific
regulatory revisions EPA had ordered the State to make to its IEU rules
as a condition of full approval. EPA therefore moved the Court on May
23, 1995, to vacate and remand to EPA those portions of EPA's final
interim approval of Washington's operating permits program concerning
IEUs. The Court granted EPA's motion on July 7, 1995.
Following the Court's order, EPA again reviewed the part 70
regulations and Washington's IEU provisions and, on September 28, 1995,
again proposed interim approval of the State's program (60 FR 50166).
EPA explained in the proposal that EPA continued to believe that
Washington's IEU provisions did not comport with the requirements of
part 70 with respect to permit content because the State's regulations
expressly excluded IEUs subject to generally applicable requirements of
the Washington State Implementation Plan (SIP) from all the
requirements of 40 CFR 70.6, except for the requirement to include in
the permit all applicable requirements. EPA also expressed its concern
that the State's definition of
[[Page 62993]]
IEU excluded, perhaps unintentionally, IEUs from certain permit
application requirements that apply to IEUs and possibly from even
title V applicability determinations.
During the public comment period on the September 1995 proposal,
EPA received comments from the Petitioners, the State of Washington,
Department of Ecology (``State'' or ``Ecology''), and the Boeing
Corporation, an aerospace manufacturing concern with major operations
in Washington State (collectively, the ``commenters''). The commenters
addressed only EPA's proposed interim approval of the Washington IEU
program. No comments were received regarding the change in jurisdiction
of Benton County Clean Air Authority or the correction of the
expiration date for interim approval.
EPA has carefully reviewed the comments and continues to believe
that the Washington IEU program must be revised as a condition of full
approval. As discussed in more detail below, EPA grants deference to
the State's interpretation of its IEU regulations, and is therefore
satisfied, based on the State's interpretation, that the State's IEU
regulations meet the requirements of part 70 with respect to permit
applications and title V applicability. The problems with the permit
content requirements of section 70.6 which EPA addressed in the
September 1995 proposal, however, arise not from a difference of
opinion as to the interpretation of Washington's regulations, but
instead from a difference of opinion as to the plain meaning and intent
of the part 70 regulations themselves. EPA continues to believe that
part 70 does not exempt IEUs subject to applicable requirements from
the testing, monitoring, recordkeeping, reporting, compliance, and
compliance certification requirements of 40 CFR 70.6(a)(1), (a)(3) and
(c). Because Washington's title V program expressly excludes IEUs
subject to generally applicable requirements from these requirements of
section 70.6, EPA continues to believe that the Washington IEU
regulations do not qualify for full approval.
II. Final Action and Implications
A. Response to Comments
As discussed above, the comments addressed only EPA's proposed
interim approval of Washington's IEU regulations.
1. Permit Content
As the State of Washington and Petitioners concede, the Washington
program expressly exempts IEUs subject to generally applicable
requirements from the testing, monitoring, recordkeeping, reporting,
compliance, and compliance certification requirements of section
70.6.2 See WAC 173-401-200(16), 173-401-530(2)(c) and 173-401-
530(2)(d). Instead, for IEUs subject to generally applicable
requirements of the Washington SIP, the Washington program requires
only that the permit contain the generally applicable requirements that
apply to such IEUs. WAC 173-401-530(2)(b). The commenters argue that
the language and intent of the part 70 regulations allow such an
exemption from the permit content requirements of section 70.6 for
IEUs. EPA disagrees.
\2\ This includes the requirement to include ``gapfilling''
testing, monitoring, recordkeeping and reporting requirements for
IEUs, as required by 40 CFR 70.6(a)(3)(i), (ii) and (iii);
compliance certification, testing, monitoring, reporting and
recordkeeping requirements sufficient to assure compliance with the
generally applicable requirements for subject IEUs, as required by
40 CFR 70.6(c)(1); compliance certification for IEUs, as required by
40 CFR 70.6(c)(5); and, for IEUs not in compliance, a compliance
schedule and progress reports, as required by 40 CFR 70.6(c)(3) and
(4).
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The commenters acknowledge that there is no reference in 40 CFR
70.6 to IEUs. They argue, however, that this fact ``in no way
undermines the authority granted to states in section 70.5 to exempt
insignificant emission units from permit program requirements.''
Section 70.5, however, does not exempt IEUs from ``permit program
requirements'' in general, but instead exempts IEUs only from certain
permit application requirements. There is nothing in the language of
section 70.5 or elsewhere in the part 70 regulations to support the
commenters' argument that, because a State may exempt IEUs from certain
permit application requirements in section 70.5, a State may also
exempt IEUs from certain permit content requirements in section 70.6.
The commenters' reliance on EPA's inherent power to exempt emission
units with de minimis emissions from certain permit content
requirements is also misplaced. EPA did indeed rely on Alabama Power
Co. v. Costle, 636 F.2d 323 (D.C. Cir. 1980), to exempt IEUs from
certain permit application requirements in section 70.5. See 57 FR
32250, 32273 (July 21, 1992). Whether EPA could have relied on this
same authority to exempt IEUs from certain permit content requirements
in section 70.6, however, is irrelevant at this point. As stated above,
nothing in the language of the part 70 regulations themselves or in the
preamble to the proposed or final part 70 regulations supports the
commenters' argument that the limited exemption in certain permit
application requirements in section 70.5 also extends to the permit
content requirements of section 70.6. The commenters' concern appears
to be with the part 70 regulations themselves, that is, the failure of
the part 70 regulations to exempt IEUs subject to applicable
requirements from certain permit content requirements of section 70.6.
The time for raising such an issue has long since past.
Unable to point to any language in the part 70 regulations
supporting their interpretation, the commenters rely on ``logic.'' The
commenters first argue that ``it is entirely illogical for EPA to
specifically exempt these IEUs from the application and then attempt to
regulate these same IEUs in the final permit.'' The commenters go on to
state that EPA's decision undermines the broad purpose of part 70's IEU
program exemption. The commenters appear to misunderstand the purpose
and scope of the part 70 program for insignificant emissions units and
activities. In promulgating section 70.5(c), EPA crafted a limited
exemption regarding the information required in part 70 permit
applications. Notwithstanding this general exemption from certain
permit application requirements, section 70.5(c) requires that an
application ``may not omit information needed to determine the
applicability of, or to impose, any applicable requirement.'' This
means that when information is needed in an application to determine
whether substantive requirements apply to an IEU, even this limited
exemption to the permit application requirements provided in section
70.5 falls away.
In a similar vein is the comment that not allowing IEU's to be
exempted from permit content requirements ``essentially obliterates the
exemption.'' EPA disagrees. An emission unit that is not exempted from
the application must be addressed in accordance with section
70.5(c)(3), which among other things requires a physical description of
the emissions points, information about the emissions, raw materials
and production rate, and any air pollution control equipment. EPA
therefore sees no basis for the argument that extension of the IEU
exemption to the permit content requirements of section 70.6 is
necessary in order to give meaning to the IEU exemption.
The commenters also argue that ``If insignificant emission units
are not entirely exempted from the monitoring, recordkeeping, reporting
and certification requirements of a permit, both sources and permitting
agencies will be forced to expend substantial
[[Page 62994]]
resources without compensating environmental benefit.'' As an initial
matter, EPA again points out that this concern challenges the part 70
regulations themselves and should have been raised following final
promulgation of the part 70 regulations. Such concerns are untimely
when raised in the context of EPA's action on Washington's title V
program. In any event, EPA disagrees that applying the testing
monitoring, recordkeeping, reporting, and compliance certification
requirements of section 70.6 to IEUs with applicable requirements will
be unduly burdensome or result in no compensating environmental
benefit.
The commenters imply that requiring the provisions of section 70.6
to be met with respect to IEUs subject to applicable requirements will
result in unnecessary paperwork. As EPA discussed in its September 1995
proposal on this action, part 70 allows States flexibility in tailoring
the amount and quality of information required in the permit
application, and the rigor of compliance requirements in the permit, to
the type of emission unit and applicable requirement in question. See
60 FR 50170; See also White Paper for Streamlined Development of Part
70 Permit Applications, from Lydia Wegman, Deputy Director of EPA's
Office of Air Quality Planning and Standards, to EPA Regional Air
Directors (July 10, 1995). The requirement to include in a permit
testing, monitoring, recordkeeping, reporting, and compliance
certification sufficient to assure compliance with the terms and
conditions of the permit does not require the permit to impose the same
level of rigor with respect to emission units that do not require
extensive testing or monitoring in order to assure compliance with the
applicable requirements as it does with respect to emission units that
do require extensive testing or monitoring because of their potential
to violate emission limitations or other requirements under normal
operating conditions. As provided for in 40 CFR 70.6(a)(3)(B),
recordkeeping may be used to provide reliable data that are
representative of the source's compliance with the permit. For example,
records showing the use of natural gas as the fuel for combustion
sources would, in most cases, provide reliable data for a certification
of compliance with sulfur dioxide emission limits.
The burden of ensuring that a permit meets the requirements of
section 70.6 can also be significantly minimized by using standard
permit terms to address testing, monitoring, recordkeeping, reporting,
compliance and compliance certification requirements for common
generally applicable requirements that apply to IEUs. Permits could,
for example, contain a chart summarizing the monitoring, recordkeeping,
and reporting requirements that would form the basis for compliance
certifications for the generally applicable requirements for IEUs.
In the September 1995 proposal on this action, EPA pointed to the
Oregon operating permits program as an example of a program that had
effectively implemented the requirements of section 70.6 for IEUs. The
Oregon program received interim approval effective January 3, 1995, (59
FR 61820 (December 2, 1994)),3 one month after Washington's
program first received final interim approval. Since that time, Oregon
permitting authorities have received complete title V permit
applications from over 86 sources, have issued 12 final title V permits
and have submitted to EPA an additional 5 proposed title V permits. As
discussed in the September 1995 proposal on this action, Oregon has
used standard permit terms in its title V permits to address generally
applicable requirements for IEUs as well as the associated testing,
monitoring, recordkeeping, reporting, compliance, and compliance
certification requirements for such IEUs. See 60 FR 50170-50171. Based
on EPA's review of public comments on the 5 proposed and 12 final
permits issued to date, Oregon sources have not objected to the permit
terms relating to IEUs.
\3\ Oregon's IEU provisions received full approval when EPA
granted the Oregon title V program final interim approval, see 59 FR
61820 (December 2, 1994), and the entire Oregon title V program has
now received final full approval. See 60 FR 50106 (September 28,
1995).
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EPA is committed to issuing additional guidance to aid State and
local permitting authorities in drafting permits which comply with the
permit content requirements of section 70.6. EPA intends to issue such
guidance with respect to IEUs with applicable requirements within the
next several months. This guidance will address such things as
streamlining the permit by using general conditions which apply to
categories of IEUs; appropriate monitoring, recordkeeping and reporting
requirements for IEUs; and the appropriate level of information (i.e.,
reasonable inquiry) upon which compliance certifications would be
based.
One commenter on the Washington title V program has stated, without
any substantiation, that ``a comparison of title V applications for
similar sources in the two states reveals that Oregon applications were
several times larger than those prepared in Washington, with the
difference attributable to emissions units making up one or two percent
of the source's total emissions.'' Although EPA has to date received
only 16 permit applications from title V sources in Washington, a
comparison of five Washington title V applications to Oregon title V
applications for sources with the same SIC codes does not substantiate
the commenter's claim. Although the Oregon permit applications that EPA
reviewed were generally one-and-one-half times larger than their
Washington counterparts, two of the five Washington applications
contained more pages addressing IEUs and facility-wide applicable
requirements than did their Oregon counterparts and one had the same
number of pages. More importantly, none of these 10 permit applications
for Washington and Oregon contained any significant number of pages
addressing IEUs. The IEU-related portions of the Oregon applications
ranged from 5 to 25 pages and the IEU-related portions of the
Washington applications ranged from 3 to 19 pages. As indicated by the
sample Oregon permit which was included in the docket for the proposal
on this action, and the accompanying application for the permit which
EPA has added to the docket, only 8 of the 165 pages of the permit
application are devoted to IEUs, which includes three pages of
checklists for categorically exempt IEUs, one page of brief
descriptions/equations addressing aggregate insignificant IEUs, two
pages listing facility-wide applicable requirements, and two pages
listing compliance methods for the facility-wide applicable
requirements. Note as well that not even two of the 27 pages of the
Oregon permit for this source are devoted to IEUs. Any difference in
the size of Oregon and Washington title V permit applications appears
to be attributable to the difference in the forms required to be
submitted for emission units other than IEUs and other differences in
the Oregon and Washington air programs, such as the unique plant site
emissions limit (PSEL) provisions of Oregon's rules. In short, Oregon
permitting authorities and sources do not appear to be awash in the
avalanche of paperwork for IEUs predicted by the commenters.
EPA also vigorously disagrees that requiring permits to address the
testing, monitoring, reporting, recordkeeping, compliance, and
compliance certification requirements of section 70.6 for IEUs will
have little or no environmental benefit. For example, the Washington
IEU program lists ``vents
[[Page 62995]]
from rooms, buildings and enclosures that contain permitted emissions
units or activities from which local ventilation, controls and separate
exhaust are provided'' as ``categorically exempt'' IEUs if they are
subject to no applicable requirements other than the generally
applicable requirements of the Washington SIP. WAC 173-401-532(9) and
173-401-530(2)(a). EPA has received a title V application from one
Washington facility which lists ``furnace building roof monitor and
other vents, doorways'' as collectively emitting 922 tons of
particulate per year. The application also indicates that these
emission points are subject only to the generally applicable opacity
limit (WAC 173-400-040(1)), grain loading standard (WAC 173-400-060),
and sulfur dioxide standard (WAC 173-400-040(6)) in the Washington SIP.
Based on the description provided in the application, EPA believes that
these emission units would qualify as IEUs under WAC 173-401-532(9) and
173-401-530(2)(a). The application indicates that these emissions units
are not in compliance with the State's opacity limit. Washington's
current regulations would require that the title V permit for this
source contain the generally applicable requirements that apply to
these IEUs, but would exempt them from any other requirements of
section 70.6, including the requirement to submit an annual compliance
certification. The environmental benefit of requiring the title V
permit for such a source to include an appropriate level of testing,
monitoring, recordkeeping, and reporting, and to require annual
certification of the compliance status of these IEUs, should be
obvious. Requiring IEUs to be addressed in the permit puts the burden
on sources to ensure that they are in compliance with the applicable
requirements, rather than on permitting authorities to document that
such sources are out of compliance. This shift in responsibility for
ensuring compliance is one of the major objectives of the title V
program.
The commenters final comment on the permit content issue is that,
in finding that Washington's IEU regulations fail to meet the permit
content requirements of section 70.6, EPA is holding the Washington
program to a different standard than the agency has applied to other
States. The commenters can point to no instance, however, in which EPA
has given approval to an IEU program which expressly exempts IEUs from
some or all permit content requirements, as does the Washington
program. Instead, the commenters' argument appears to be that EPA has
approved State programs that exempt or require only the summary listing
of IEUs in permit applications and that, ``Because the [IEU] units are
not listed in the permit application there is a clear inference to
sources, and the tacit understanding by the permitting agencies that
IEUs are not included in the operating permit.'' This is not the case.
EPA has approved State title V programs that exempt or allow
sources to omit IEUs from or merely list IEUs in the permit
application, but only if the States have shown to EPA's satisfaction
that their programs meet the two minimum requirements of section
70.5(c) for the treatment of IEUs in permit applications. First,
insignificant activities which are exempt because of size or production
rate must be listed in the permit application. Second, the permit
application may not omit information needed to determine the
applicability of, or to impose, any applicable requirement or any
required fee.4 EPA also required the State of Washington to
satisfy these requirements as a condition of full approval of its IEU
provisions and, as discussed below, EPA now finds that Washington has
satisfied these requirements for permit applications.
\4\ The Wisconsin program does not specifically contain this
requirement. As EPA clarified in its technical support document
supporting EPA's approval of the Wisconsin program, however, because
the State very narrowly defined IEUs and required that all IEUs be
listed in the application, the Wisconsin program met the
requirements of section 70.5(c).
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But, contrary to the commenters' assertion, EPA has also required,
as a condition for full approval of a State's IEU program, that the
State ensure that permits issued for such sources comply with the
requirements of section 70.6 with respect to all IEUs subject to
applicable requirements. EPA disagrees with the inference drawn by the
commenters, namely, that other State programs might be interpreted to
exempt IEU's from permit content requirements because the State
programs have provided sources relief from certain permit application
requirements. Such an inference is not reasonable or appropriate given
the fact that there is no language in the State program regulations
cited by the commenters which contain or suggest an exemption from the
permit content requirements and given the fact that the federal
regulation under which the State programs have been approved does not
allow for this result. Indeed, for obvious reasons, EPA's approval of
these programs has been based on the assumption that State program
regulations will be interpreted in the same way that EPA has
interpreted part 70. That is, where the State program does not
specifically exempt IEU's from permit content requirements, EPA has
assumed that no such exemption will be inferred. Where EPA has been
concerned that a State program could be interpreted to provide an
exemption from permit content requirements for IEUs subject to
applicable requirements, EPA has clarified its expectation in the
Federal Register notice acting on such programs that the permitting
authorities must ensure that all permits issued ``assure compliance
with all applicable requirements at the time of permit issuance.'' See
60 FR 32603, 32608 (June 23, 1995); 60 FR 44799, 44801 (August 29,
1995). If, during implementation of such programs, permits are issued
which do not comply with the requirements of section 70.6 with respect
to IEUs subject to applicable requirements, EPA would consider this
grounds for objecting to individual permits, 40 CFR 70.8(c)(1), as well
as grounds for withdrawing approval of such State programs, 40 CFR
70.10(c)(1)(ii)(B).
In summary, the commenters can point to no instance in which EPA
has approved a State program which expressly exempts IEUs with
applicable requirements from the permit content requirements of section
70.6. Moreover, the commenters can point to no action on the part of
EPA which has expressly or implicitly condoned a tacit exemption from
the permit content requirements for such IEUs. EPA's decision to grant
interim rather than full approval to the Washington IEU regulations for
failing to comply with the requirements of section 70.6 is fully
consistent with EPA's actions on other State IEU programs.
2. Permit Application Requirements
The commenters also objected to EPA's proposed finding that the
Washington regulations fail to meet the requirements of section 70.5
for permit applications with respect to IEUs. The basis of EPA's
position was that WAC 173-401-200(16) appears to specifically exempt
activities and units deemed insignificant under WAC 173-401-530 from
all of Washington's permit program requirements, except as provided in
WAC 173-401-530. WAC 173-401-530, however, does not include all of the
requirements of section 70.5 which a State must meet with respect to
IEUs, most importantly, the requirement of section 70.5(c) that a
permit application may not omit information needed to determine the
applicability or to impose any
[[Page 62996]]
applicable requirement or to evaluate any required fee (the
``applicable requirements gatekeeper'').5 WAC 173-401-530 also
does not incorporate the requirement that all applications be certified
as to truth, accuracy and completeness, which is contained in WAC 173-
401-500(7)(c) and 173-401-520. Another problem noted by EPA was the
fact that WAC 173-401-500(7) could be interpreted as allowing a permit
application to be deemed complete even if the source had not provided
the information in the permit application required by Washington's
regulations for IEUs.
\5\ Although, in the September 1995 proposal on this action, EPA
did not specifically discuss the applicable requirements gatekeeper
as one of the examples where the Washington program fails to satisfy
the requirements of part 70 with respect to permit applications, the
opening sentence of the discussion in the proposal on permit
applications clearly expressed EPA's concern that the exemption in
WAC 173-401-200(16) appeared to extend to the gatekeeper itself,
which is contained in WAC 173-401-510(1). See 60 FR 50169.
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The commenters, including the State of Washington, responded that
EPA was taking an overly broad interpretation of the exclusion
contained in WAC 173-401-200(16), thereby giving other provisions of
Washington's IEU regulations no effect. Upon further review and based
on the State's interpretation of its regulations, EPA finds that the
Washington IEU provisions meet the requirements of section 70.5(c).
The definition of IEU at WAC 173-401-200(16) does appear to exclude
IEUs from all requirements except those contained in WAC 173-401-530.
Certain other requirements of Washington's regulations for title V
permit applications, however, specifically refer to IEUs. Importantly,
WAC 173-401-510, which sets forth the permit application requirements
for all sources in Washington, specifically refers to IEUs by stating:
Information as described below for each emissions unit at a
chapter 401 source other than insignificant emissions units shall be
included in the application. However, an application may not omit
information need to determine the applicability of, or to impose,
any applicable requirement or to evaluate the fee amount required
under the permitting authority's schedule.
WAC 173-401-510(1). The State has argued that this provision would be
nullified if WAC 173-401-200(16) was interpreted to exempt IEUs from
those provisions outside of WAC 173-401-530 that specifically refer to
IEUs, such as 173-401-510(1). The State has assured EPA that this was
not its intent. Instead, the State has stated that the ``applicable
requirements gatekeeper'' of WAC 173-401-510(1) was specifically
included to limit the statements in WAC 173-401-200(16) and 173-401-
510(1) that IEUs are not subject to the permit program requirements,
including the application requirements, except as provided by WAC 173-
401-530.
In response to the EPA's concern with respect to the requirement to
certify the truth, accuracy and completeness of the permit application,
the commenters state that ``Statements in a Washington operating permit
application, including those regarding IEUs made in accordance with WAC
173-401-530, are plainly subject to the certification requirements of
WAC 173-401-500(7)(c).'' The State further argues that the State's
standard permit application form requires certification of all
information in the application and that if a source attempted to limit
its certification with respect to IEUs, the State would view the
application incomplete.
In response to EPA's concern that the criteria for determining
completeness in WAC 173-401-500(7) could be interpreted to allow an
application to be deemed complete even if it omits all required
information on IEUs, the commenters again point out that the specific
provisions in WAC 173-401-510(1) and -500(4) require an application to
include necessary information regarding IEUs to be complete and that
interpreting WAC 173-401-200(16) to vitiate those provisions would
render the specific references to IEUs in WAC 173-401-500 and 173-401-
510 meaningless.
Although EPA believes the interrelationship among the various
provisions in Washington's regulations for IEUs is far from clear, EPA
is willing to grant deference to the State's interpretation of its own
rules. Accordingly, EPA now finds that Washington's program fully meets
the requirements of 40 CFR 70.5 regarding permit applications. Because
the State will need to revise its title V rules to get full title V
approval, EPA strongly encourages the State to revise its IEU
provisions to clarify the relationship among WAC 173-401-200(16), 173-
401-500, 173-401-510, 173-401-520 and 173-401-530. EPA will also pay
close attention during program implementation to permit applications
and proposed permits to ensure that the Washington rules are
implemented consistently with the State's assertions.
3. Applicability Determinations
A final concern raised by EPA was that State law could be
interpreted so as to exclude emissions from IEUs in the calculation of
a source's potential to emit for purposes of determining whether the
source was a major source and thereby subject to Washington's title V
program in the first instance. Again, EPA's concern hinged on the
extent of the exemption in WAC 173-401-200(16). The commenters
responded by pointing out that the definition of ``insignificant
activity'' or ``insignificant emission unit'' requires the unit or
activity to be ``located at a chapter 401 source'' before it can
qualify as insignificant and thus be exempted from certain permit
program requirements. The commenters argue that this requires that a
source first be determined to be a major source before any emission
unit can be deemed insignificant, thus requiring all emissions,
including emissions from IEUs, to be considered when determining if a
source is a major source.
Again, EPA is willing to grant deference to the State's
interpretation of its own rules and finds that this provision complies
with the requirements of 40 CFR Part 70. EPA will also pay close
attention to applicability determinations during program implementation
to ensure that the Washington rules are implemented consistently with
the State's assertions.
B. Interim Approval Action
EPA is promulgating interim approval of Washington's regulations
addressing IEUs. Ecology must make the following revisions to its IEU
provisions as a condition of full approval:
(5) Revise WAC 173-401-200(16) (Definition of ``insignificant
activity'' and ``insignificant emissions unit''); WAC 173-401-530
(Insignificant emission units); WAC 173-401-532 (Categorically
exempt insignificant emission units); and WAC 173-401-533 (Units and
activities defined as insignificant based on size or production
rate) to ensure that permits contain all applicable requirements and
meet all permit content requirements of 40 CFR 70.6 for all emission
units, even for IEUs.
This requirement replaces Condition 5 under the heading ``Ecology''
in section II.B. of EPA's November 9, 1994, Federal Register notice
granting final interim approval of the Washington operating permits
program. See 59 FR 55818. Note that this action in no way affects the
changes necessary to address all other interim approval issues
identified in the November 9, 1994 Federal Register notice. In other
words, as a condition of full approval, Washington must also correct
the four other deficiencies in its program identified in the November
9, 1994, notice and the other Washington permitting authorities must
correct all
[[Page 62997]]
deficiencies in their respective programs identified in the November 9,
1994, notice. See 59 FR 55818-55819.
EPA is also approving as a program revision the transfer of title V
permitting and enforcement authority for sources in Franklin County to
the Washington Department of Ecology.
Finally, EPA is correcting the dates in 40 CFR Part 70, Appendix A
for expiration of the interim approval of the Washington State and
local operating permits programs from November 9, 1996, to December 9,
1996, and is correcting the date by which the State is required to
submit a corrective program from May 9, 1996, to June 9, 1996.
C. Effective Date of Interim Approval
This action does not change the time period for the initial interim
approval, which is December 9, 1996. During this ongoing interim
approval period, the State is protected from sanctions for failure to
have a program, and EPA is not obligated to promulgate, administer and
enforce a Federal permits program for the State of Washington. Permits
issued under the Washington program have full standing with respect to
part 70. In addition, the 1-year deadline for submittal of permit
applications by subject sources and the 3-year time period for
processing the initial permit applications began upon the effective
date of interim approval, which in this case was December 9, 1994.
If the State of Washington were to fail to submit a complete
corrective program for full approval by the date 6 months before
expiration of the interim approval (by June 9, 1996) EPA would start an
18-month clock for mandatory sanctions. If the State of Washington were
then to fail to submit a complete corrective program before the
expiration of that 18-month period, EPA would be required to apply one
of the sanctions in section 179(b) of the Act, which would remain in
effect until EPA determined that the State of Washington had corrected
the deficiency by submitting a complete corrective program. Moreover,
if the Administrator were to find a lack of good faith on the part of
the State of Washington both sanctions under section 179(b) would apply
after the expiration of the 18-month period until the Administrator
determined that the State of Washington had come into compliance. In
any case, if, 6 months after application of the first sanction, the
State of Washington still had not submitted a corrective program that
EPA found complete, a second sanction would be required.
If, following expiration of final interim approval, EPA were to
disapprove the State of Washington's complete corrective program, EPA
would be required to apply one of the section 179(b) sanctions on the
date 18 months after the effective date of the disapproval, unless
prior to that date the State or Washington had submitted a revised
program and EPA had determined that it corrected the deficiencies that
prompted the disapproval. Moreover, if the Administrator found a lack
of good faith on the part of the State of Washington both sanctions
under section 179(b) would apply after the expiration of the 18-month
period until the Administrator determined that the State of Washington
had come into compliance. In all cases, if, 6 months after EPA applied
the first sanction, the State of Washington had not submitted a revised
program that EPA had determined corrected the deficiencies that
prompted disapproval, a second sanction would be required.
In addition, discretionary sanctions may be applied where warranted
any time after the end of an interim approval period if a State has not
timely submitted a complete corrective program or EPA has disapproved a
submitted corrective program. Moreover, if EPA has not granted full
approval to a State program by the expiration of an interim approval
and that expiration occurs after November 15, 1995, EPA must
promulgate, administer and enforce a Federal permit's program for that
State upon expiration of interim approval.
III. Administrative Requirements
A. Docket
Copies of the State's submittal and other information relied upon
for this action are contained in a docket maintained at the EPA
Regional Office. The docket is an organized and complete file of all
the information submitted to, or otherwise considered by, EPA in the
development of this final interim approval. The docket is available for
public inspection at the location listed under the ADDRESSES section of
this document.
B. Executive Order 12866
The Office of Management and Budget has exempted this action from
Executive Order 12866 review.
C. Regulatory Flexibility Act
EPA's actions under section 502 of the Act do not create any new
requirements, but simply address operating permits programs submitted
to satisfy the requirements of 40 CFR part 70. Because this proposed
action does not impose any new requirements, it does not have a
significant impact on a substantial number of small entities.
D. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995,
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 action proposed 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.
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.
Authority: 42 U.S.C. sections 7401-7671q.
Final Interim Approval of the part 70 operating permits program for
the Washington Department of Ecology, the Washington Energy Facility
Site Evaluation Council, the Benton County Clean Air Authority, the
Northwest Air Pollution Authority, the Olympic Air Pollution Control
Authority, the Puget Sound Air Pollution Control Agency, the Spokane
County Air Pollution Control Authority, the Southwest Air Pollution
Control Authority, and the Yakima County Clean Air Authority.
Dated: November 15, 1995.
Chuck Clarke,
Regional Administrator.
PART 70--[AMENDED]
Part 70, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
[[Page 62998]]
1. The authority citation for part 70 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
2. Part 70 is amended by revising the Washington paragraph of
Appendix A as follows:
Appendix A--Approval Status of State and Local Operating Permits
Programs
* * * * *
Washington
(a) Department of Ecology (Ecology): submitted on November 1,
1993; effective on December 9, 1994; interim approval expires
December 9, 1996.
(b) Energy Facility Site Evaluation Council (EFSEC): submitted
on November 1, 1993; effective on December 9, 1994; interim approval
expires December 9, 1996.
(c) Benton County Clean Air Authority (BCCAA): submitted on
November 1, 1993 and amended on September 29, 1994 and April 12,
1995; effective on December 9, 1994; interim approval expires
December 9, 1996.
(d) Northwest Air Pollution Authority (NWAPA): submitted on
November 1, 1993; effective on December 9, 1994; interim approval
expires December 9, 1996.
(e) Olympic Air Pollution Control Authority (OAPCA): submitted
on November 1, 1993; effective on December 9, 1994; interim approval
expires December 9, 1996.
(f) Puget Sound Air Pollution Control Agency (PSAPCA): submitted
on November 1, 1993; effective on December 9, 1994; interim approval
expires December 9, 1996.
(g) Southwest Air Pollution Control Authority (SWAPCA):
submitted on November 1, 1993; effective on December 9, 1994;
interim approval expires December 9, 1996.
(h) Spokane County Air Pollution Control Authority (SCAPCA):
submitted on November 1, 1993; effective on December 9, 1994;
interim approval expires December 9, 1996.
(i) Yakima County Clean Air Authority (YCCAA): submitted on
November 1, 1993 and amended on September 29, 1994; effective on
December 9, 1994; interim approval expires December 9, 1996.
* * * * *
[FR Doc. 95-29994 Filed 12-7-95; 8:45 am]
BILLING CODE 6560-50-P
