[Federal Register Volume 60, Number 35 (Wednesday, February 22, 1995)]
[Proposed Rules]
[Pages 9802-9810]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-4291]
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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]
BILLING CODE 6560-50-P
