[Federal Register Volume 66, Number 1 (Tuesday, January 2, 2001)]
[Rules and Regulations]
[Pages 16-22]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-33302]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[FRL-6925-5]
Clean Air Act Full Approval of Operating Permits Program in
Washington
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is taking final action to fully approve the operating
permits program submitted by the State of Washington. Washington's
operating permits program was submitted in response to the directive in
the Clean Air Act that permitting authorities develop, and submit to
EPA, programs for issuing operating permits to all major stationary
sources and to certain other sources within the permitting authority's
jurisdiction. EPA granted interim approval to Washington's air
operating permit program on November 9, 1994 (59 FR 55813); EPA
repromulgated final interim approval on one issue, and a notice of
correction for Washington's operating permits program, on December 8,
1995 (60 FR 62992). The state and local agencies that implement the
Washington operating permits program have revised their programs to
satisfy the conditions of the interim approval and this action approves
those revisions.
DATES: This direct final rule is effective on March 5, 2001 without
further notice, unless EPA receives adverse comment by February 1,
2001. If adverse comment is received, EPA will publish a timely
withdrawal of this direct final rule in the Federal Register and inform
the public that the rule will not take effect. The public comments will
be addressed in a subsequent final rule based on the proposed rule
published in this Federal Register.
ADDRESSES: Copies of the State of Washington's submittal and other
supporting information used in developing this final full approval are
available for inspection during normal business hours at the following
location: U.S. Environmental Protection Agency, Region 10, 1200 Sixth
Avenue, Seattle, Washington, 98101. Interested persons wanting to
examine these documents should make an appointment with the appropriate
office at least 24 hours before the visiting day.
FOR FURTHER INFORMATION CONTACT: Denise Baker, Office of Air Quality
(OAQ-107), EPA, 1200 6th Avenue, Seattle, WA 98101, (206) 553-8087.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
A. What is the Title V Air Operating Permits Program?
B. What is the Status of Washington's Title V Air Operating
Permits Program?
II. What Changes Have the Washington Permitting Authorities Made to
Address the Interim Approval Issues?
A. Maximum Criminal Penalty Authority
B. False Statements
C. Tampering
D. Writ of Mandamus
E. Insignificant Emission Units
F. NWAPA: Penalty Authority for Multiple Standards
G. OAPCA: Potential to Emit
H. SCAPCA: Limitation on Criminal Penalty Authority
I. YRCAA: Knowing Violations
III. What Other Changes has Washington Made to its Program--Outside
of Addressing the Interim Approval Issues?
A. Compliance Assurance Agreement
B. SWAPCA Regulations
C. RCW Ch. 43.05
D. YRCAA Regulations
IV. Final Action
V. What Happens if EPA Gets Comments on this Federal Register?
VI. Are there any Administrative Requirements that Apply to this
Action?
I. Background
A. What Is the Title V Air Operating Permits Program?
The Clean Air Act (CAA) Amendments of 1990 required all state and
local permitting authorities to develop operating permits programs that
meet certain Federal criteria. In implementing the operating permits
programs, the permitting authorities require certain sources of air
pollution to obtain permits that contain all applicable requirements
under the CAA. The focus of the operating permits program is to improve
enforcement by issuing each source a permit that consolidates all the
applicable CAA requirements into a Federally enforceable document. By
consolidating all the applicable requirements for a source in a single
document, the source, the public, and regulators can more easily
determine what CAA
[[Page 17]]
requirements apply to the source and whether the source is in
compliance with those requirements.
Sources required to obtain an operating permit under the title V
program include ``major'' sources of air pollution and certain other
sources specified in the CAA or in EPA's implementing regulations. For
example, all sources regulated under the acid rain program, regardless
of size, must obtain operating permits. Examples of major sources
include those that have the potential to emit 100 tons per year or more
of volatile organic compounds, carbon monoxide, lead, sulfur dioxide,
nitrogen oxides, or particulate matter; those that emit 10 tons per
year or more of any single hazardous air pollutant (specifically listed
under the CAA); or those that emit 25 tons per year or more of a
combination of hazardous air pollutants (HAPs). In areas that are not
meeting the National Ambient Air Quality Standards for ozone, carbon
monoxide, or particulate matter, major sources are defined by the
gravity of the nonattainment classification. For example, in ozone
nonattainment areas classified as ``serious,'' major sources include
those with the potential to emit 50 tons per year or more of volatile
organic compounds or nitrogen oxides.
B. What Is the Status of Washington's Title V Air Operating Permits
Program?
The State of Washington (Washington or State) originally submitted
its application for the title V air operating permits program to EPA in
1993. In Washington, the air operating permits program is implemented
by the Washington Department of Ecology (Ecology), the Washington
Energy Facility Site Evaluation Council (EFSEC); and the following
seven local air pollution control authorities:
The Benton County Clean Air Authority (BCCAA) [formerly
known as the Benton-Franklin Counties Clean Air Authority (BFCCAA)];
The Northwest Air Pollution Authority (NWAPA);
The Olympic Air Pollution Control Authority (OAPCA);
The Puget Sound Clean Air Agency (PSCAA) [formerly known
as the Puget Sound Air Pollution Control Agency (PSAPCA)];
The Spokane County Air Pollution Control Authority
(SCAPCA);
The Southwest Clean Air Agency (SWCAA) [formerly known as
the Southwest Air Pollution Control Authority (SWAPCA)]; and
The Yakima Regional Clean Air Authority (YRCAA) [formerly
known as the Yakima County Clean Air Authority (YCCAA)].
Where an operating permits program substantially, but not fully,
meets the criteria outlined in the implementing regulations codified in
40 Code of Federal Regulations (CFR) part 70, EPA is authorized to
grant interim approval contingent on the state revising its program to
correct the deficiencies. Because the operating permits program
originally submitted by Washington in 1993 substantially, but not
fully, met the requirements of part 70, EPA granted interim approval to
Washington's program in an action published on November 9, 1994 (59 FR
55813). The interim approval notice identified the conditions that
Washington must meet in order to receive full approval of its title V
air operating permits program. On December 8, 1995 (60 FR 62992), EPA
published a second final interim approval revising one of the
conditions that Washington needed to meet to receive full approval of
its program and making other minor corrections and revisions to the
interim approval.
This document describes the changes the Washington permitting
authorities have made to their programs since we granted Washington's
program interim approval and the action EPA is taking in response to
those changes.
II. What Changes Have the Washington Permitting Authorities Made To
Address the Interim Approval Issues?
On June 5, 1996, Ecology sent a letter to EPA addressing the
interim approval issues and requesting full program approval of
Washington's air operating permits program. EPA received additional
submittals from Ecology addressing the interim approval issues on
October 3, 1996, August 25, 1998, and May 24, 1999. The submittals from
Ecology included submittals from NWAPA, OAPCA, PSCAA, SCAPCA, and
YRCAA.\1\
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\1\ In granting Washington interim approval, EPA did not
identify any specific changes that needed to be made to the
operating permit programs for EFSEC, BCCAA, and SWAPCA. See 59 FR
55818-55819.
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EPA has reviewed the program revisions submitted by the Washington
permitting authorities and has determined that the Washington program
now qualifies for full approval. This section describes the interim
approval issues identified by EPA in granting the Washington program
interim approval and the changes the Washington permitting authorities
have made to address those issues.
A. Maximum Criminal Penalty Authority
In granting Ecology interim approval, we stated that Ecology must
revise RCW 70.94.430(1) to clarify that the maximum criminal penalty
authority of $10,000 applies per day per violation, as required by 40
CFR 70.11(a)(3)(ii). See 59 FR at 55818. The statute authorizing
criminal penalty actions in Washington for title V violations
authorizes a penalty of up to $10,000 per violation, but does not
specify whether the maximum penalty can be assessed for each day that a
violation continues. EPA identified this same interim approval issue
for NWAPA, OAPCA, PSCAA, and SCAPCA, the permitting authorities that
had provisions addressing criminal penalties in their local
regulations.
To address this issue, Ecology submitted an analysis from the
Washington Attorney General's office stating that RCW 70.94.430(1),
when read in conjunction with RCW 70.94.431(1), allows the State to
collect a criminal penalty for each day that a violation continues. RCW
70.94.431(1), which addresses civil penalty authority, provides that
``Each such violation shall be a separate and distinct offense, and in
case of a continuing violation, each day's continuance shall be a
separate and distinct violation.'' Ecology has committed to following
this interpretation when Ecology participates in, or provides a
recommendation regarding, a criminal prosecution to be taken under
Chapter 70.94 RCW.
Based on the information submitted by Ecology, we are deferring to
the State's determination that RCW 70.94.430(1) and 70.94.431(1)
authorizes the State to collect up to $10,000 per day per violation for
criminal violations, as required by 40 CFR 70.11(a)(3)(ii). EPA notes,
however, that 40 CFR 70.4(b)(7) requires a permitting authority with an
approved title V program to submit at least annually information
regarding its enforcement activities, and 40 CFR 70.10(c)(iii)
authorizes EPA to withdraw program approval where a permitting
authority fails to enforce its title V program consistent with the
requirements of part 70. To ensure that RCW 70.94.430(1) does not
impermissibly limit Washington's authority to bring criminal
enforcement actions seeking up to $10,000 per day per violation, EPA
intends to monitor Washington's enforcement programs closely during
implementation and will consider withdrawing approval of Washington's
title V program if EPA later determines that Washington lacks adequate
criminal penalty authority. EPA urges Washington to clarify through
legislative changes at the earliest opportunity that RCW 70.94.430(1)
authorizes the assessment of criminal
[[Page 18]]
penalties in the maximum amount of not less than $10,000 per day per
violation.
With respect to the local air authorities, NWAPA has revised NWAPA
section 132.1 to specifically provide for maximum criminal penalties of
up to $10,000 per day per violation. See NWAPA section 132.1(1997).
SCAPCA has revised its regulations to provide for criminal fines and
imprisonment ``as provided by Chapter 70.94 RCW for each separate
violation'' and to clarify that ``Each such violation shall be a
separate and distinct offense, and in the case of a continuing
violation, each day's continuance shall be a separate and distinct
violation.'' See SCAPCA Reg. 1, section 2.11(A)(1)(1997). OAPCA and
PSCAA, whose regulations on this matter contain the same language as
RCW 70.94.430(1) and 70.94.431(1), are relying on the interpretation of
the Washington Attorney General's Office and have expressly committed
to following this interpretation in implementing their respective
programs. See OAPCA Reg. 1, sections 3.26(b)(1998) and
3.27(a)(1)(1998); PSCAA Reg. 1, sections 3.11(a) (1999) and 3.13(a)
(1999). Therefore, for the reasons discussed above with respect to the
Department of Ecology, we are satisfied that these local permitting
authorities have authority to assess criminal penalties in the maximum
amount of not less than $10,000 per day per violation, as required by
40 CFR 70.11(a)(3)(ii).
B. False Statements
In granting Ecology interim approval, we stated that Ecology must
revise State law to provide for criminal penalties of up to $10,000 per
day per violation against any person who knowingly makes any false
material statement, representation or certification in any form, in any
notice or report required by a permit, as required by 40 CFR
70.11(a)(3)(iii). See 59 FR at 55818. EPA identified this same interim
approval issue for NWAPA, OAPCA, PSCAA, and SCAPCA, the four local
permitting authorities that have specific provisions addressing
criminal penalties in their local regulations.
To address this issue, Ecology revised WAC 173-400-105 by adding a
new subsection (7), which states that ``No person shall make any false
materials (sic) statement, representation or certification in any form,
notice or report required under chapter 70.94 or 70.120 RCW, or any
ordinance, resolution, regulation, permit or order in force pursuant
thereto.'' As confirmed by a submittal from the Washington Attorney
General's office, knowing violation of this provision would subject the
violator to criminal liability under RCW 70.94.430(1).
With respect to the local permitting authorities, NWAPA and SCAPCA
have revised their local regulations to include a false statements
provision corresponding to 40 CFR 70.11(a)(3)(iii). See NWAPA section
132.6 (1997); SCAPCA Reg. 1, section 208(E)(1997). OAPCA and PSCAA have
not revised their regulations to include this provision but are instead
relying on WAC 173-400-105(7) which, as discussed above, now contains
this requirement and applies throughout the State of Washington.
Knowing violation of this provision would subject the violator to
criminal liability under RCW 70.94.430(1) and local criminal
provisions. See OAPCA Reg. 1, section 3.27(b)(1)(1998); PSCAA Reg 1,
section 3.13(a) (1999). Based on these changes and the submittal from
the Washington Attorney General's office, EPA has determined that
Ecology and the local permitting authorities have addressed the false
statements provision of 40 CFR 70.11(a)(3)(iii).
C. Tampering
In granting Ecology interim approval, we stated that Ecology must
revise State law to provide for criminal penalties of up to $10,000 per
day per violation against any person who knowingly renders inaccurate
any required monitoring device or method, as required by 40 CFR
70.11(a)(3)(iii). See 59 FR at 55818. EPA identified this same interim
approval issue for NWAPA, OAPCA, PSCAA, and SCAPCA, the four local
permitting authorities that have specific provisions addressing
criminal penalties in their local regulations.
To address this issue, Ecology revised WAC 173-400-105 by adding a
new subsection (8), which states that ``No person shall render
inaccurate any monitoring device or method required under chapter 70.94
or 70.120 RCW, or any ordinance, resolution, regulation, permit, or
order in force pursuant thereto.'' As confirmed by a submittal from the
Washington Attorney General's office, knowing violation of this
provision would subject the violator to criminal liability under RCW
70.94.430(1).
With respect to the local permitting authorities, NWAPA and SCAPCA
have revised their local regulations to include a provision
corresponding to the tampering provision of 40 CFR 70.11(a)(3)(iii).
See NWAPA section 132.5(1997); SCAPCA Reg. 1, section 208(F) (1997).
OAPCA and PSCAA have not revised their regulations to include this
provision but are instead relying on WAC 173-400-105(8) which, as
discussed above, now contains this requirement and applies throughout
the State of Washington. Knowing violation of this provision would
subject the violator to criminal liability under RCW 70.94.430(1) and
local criminal provisions. See OAPCA Reg. 1, section 3.27(b)(1)(1998);
PSCAA Reg 1, section 3.13(a) (1999). Based on these changes and the
submittal from the Washington Attorney General's office, EPA has
determined that Ecology and the local permitting authorities have
addressed the tampering provision of 40 CFR 70.11(a)(3)(iii).
D. Writ of Mandamus
In granting Ecology interim approval, we identified a problem with
Ecology's regulations for providing a cause of action in state court
for a permitting authority's failure to take final action on a permit
within the specified time period, as required by 40 CFR 70.4(b)(3)(xi).
See 59 FR at 55818. We stated that Ecology must delete WAC 173-401-
735(3) entirely or revise it so that it refers to RCW 34.05.570(4)(b),
rather than RCW 7.16.360. To address this interim approval issue,
Ecology has revised WAC 173-401-735(3) so that it now refers to RCW
34.05.570(4)(b). We have reviewed this change and determined that it
resolves this interim approval issue.
E. Insignificant Emission Units
Another interim approval issue identified by EPA relates to
Ecology's provisions for insignificant emission units and activities
(IEUs). Part 70 authorizes EPA to approve as part of a state program a
list of insignificant activities and emission levels which need not be
included in the permit application, provided that an application may
not omit information needed to determine the applicability of, or to
impose, any applicable requirement, or to evaluate the fee amount
required under the EPA-approved schedule. See 40 CFR 70.5(c).
Washington's regulations contain criteria for identifying IEUs. See WAC
173-401-200(16), -530, -532, and -533. Sources that are subject to a
Federally-enforceable requirement other than a requirement of the State
Implementation Plan that applies generally to all sources in Washington
(a so-called ``generally applicable requirement'') are not deemed
``insignificant'' under Washington's program even if they otherwise
qualify under one of the five lists. See WAC 173-401-530(2)(a).
Washington's regulations also expressly
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state that no permit application can omit information necessary to
determine the applicability of, or to impose any applicable
requirement. See WAC 173-401-510(1). In addition, WAC 173-401-530(1)
and (2)(b) provide that designation of an emission unit as an IEU does
not exempt the unit from any applicable requirements and that the
permit must contain all applicable requirements that apply to IEUs. The
Washington program, however, specifically exempts IEUs from monitoring,
recordkeeping, reporting, and compliance certification requirements
except where such requirements are specifically imposed in the
applicable requirement itself. See WAC 173-401-530(2)(c) and (d).
EPA does not believe that part 70 exempts IEUs from the monitoring,
recordkeeping, reporting, and compliance certification requirements of
40 CFR 70.6, but instead provides only a limited exemption from permit
application requirements for IEUs. EPA therefore determined that
Ecology must revise its IEU regulations as a condition of full
approval. See 60 FR at 62993-62997 (final interim approval of
Washington's operating permits program based on exemption of IEUs from
certain permit content requirements); 60 FR 50166 (September 28, 1995)
(proposed interim approval of Washington's operating permits program on
same basis).
The Western States Petroleum Association, together with several
other companies and industry associations, filed a petition with the
United States Court of Appeals for the Ninth Circuit seeking review of
this IEU condition of EPA's final interim approval of Washington's
operating permits program. Western States Petroleum Association (WSPA)
v. EPA, No. 95-70034.\2\ The State of Washington intervened in the
petition on the side of the industry petitioners. Industry petitioners
and the State challenged EPA's identification of this IEU exemption as
grounds for interim approval, asserting that such an exemption was
allowed by part 70 and that EPA had acted inconsistently by approving
other title V programs with similar exemptions. On June 17, 1996, the
Ninth Circuit found in favor of the petitioners. WSPA v. EPA, 87 F.3d
280 (9th Cir. 1996). The Ninth Circuit did not opine on whether EPA's
position was consistent with part 70. It did, however, find that EPA
had acted inconsistently in its title V approvals, and had failed to
explain the departure from precedent that the Court perceived in the
Washington interim approval. The Court then remanded the matter to EPA,
instructing EPA to give full approval to Washington's IEU regulations.
EPA petitioned the Court for rehearing on the Court's decision to order
EPA to approve Washington's IEU regulations. The Court denied EPA's
request for rehearing on November 17, 1996. WSPA v. EPA, No. 95-70034
(9th Cir. October 17, 1996).
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\2\ The petitioners originally filed a petition on January 6,
1995, in response to EPA's initial final interim approval of
Washington's title V program. See 59 FR 55813 (November 9, 1995). In
response to that petition, EPA moved for vacatur and remand of its
decision, which the Court granted on July 7, 1995. On remand, EPA
again rejected Washington's exemption of IEUs from part 70's permit
compliance requirements and clarified the basis for its decision.
See 60 FR 62992 (September 28, 1995). Petitioners then renewed their
challenge to EPA's action on the IEU provisions of Washington's
title V program.
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In light of the Court's order in the WSPA case, EPA must give full
approval to Washington's IEU regulations in this action. EPA maintains
its position, however, that part 70 does not allow the exemption of
IEUs subject to generally applicable requirements from the monitoring,
recordkeeping, reporting, and compliance certification requirements of
40 CFR 70.6. See, e.g., 61 FR 64463, 64465-64467 (December 5, 1996)
(final interim approval of Alaska title V program); 61 FR 49091, 49095-
49097 (September 18, 1996) (proposed interim approval of Alaska title V
program); 61 FR 39335, 39336-39339 (July 29, 1996) (final interim
approval of Tennessee title V program). EPA believes that 40 CFR 70.5
authorizes a permitting authority to grant certain relief for
insignificant emission units from title V permit application
requirements so long as no application omits any information necessary
to determine the applicability of or to impose any applicable
requirement or any required fee. Nothing in part 70, however,
authorizes a permitting authority to exempt from the title V permit
applicable requirements that apply to insignificant emission units; any
monitoring, recordkeeping, or reporting necessary to assure compliance
with those applicable requirements; and the requirement to certify
compliance with all permit terms and conditions, including those that
apply to insignificant emission units.
Since issuance of the Court's order in WSPA case, EPA has carefully
reviewed the IEU provisions of those eight title V programs identified
by the Court as inconsistent with EPA's decision on Washington's
regulations. EPA has determined that three of the title V programs
identified by the WSPA Court (Massachusetts, North Dakota, Knox County,
and Tennessee) are in fact consistent with EPA's position that
insignificant sources subject to applicable requirements may not be
exempt from permit content requirements. See 61 FR 39338 (July 29,
1996). With respect to the other five programs cited by the Ninth
Circuit as inconsistent with EPA's decision on Washington's program
(Florida, Hawaii, Ohio, North Carolina, and Jefferson County,
Kentucky), EPA has been working with these permitting authorities to
make changes to their IEU provisions and to get those provisions
submitted as title V program revisions. See, e.g., 65 FR 38744, 38745
(June 22, 2000) (giving full approval to Forsyth County, North
Carolina's IEU regulations after the regulations had been revised to
address the deficiencies identified by EPA after publication of the
WSPA decisions).\3\ EPA also intends to work with Washington's
permitting authorities to ensure Washington's IEU regulations are
revised to conform with the requirements of part 70 and intends to
issue a notice of deficiency in another rulemaking action if the
deficiencies in Washington's IEU regulations are not promptly
addressed.
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\3\ The regulations of Florida and the other North Carolina
permitting authorities have been revised at the state level to
address the IEU deficiencies, although EPA has not yet taken final
action on the revisions.
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F. NWAPA: Penalty Authority for Multiple Standards
In granting NWAPA interim approval, we stated that NWAPA must
revise NWAPA section 133.1 to ensure it had authority to assess civil
penalties of not less than $10,000 per day per violation in the case of
violations of multiple standards by a single emissions unit, as
required by 40 CFR 70.11(a)(3). See 59 FR at 55819. At that time,
section 133.1 appeared to cap penalties for violations of multiple
standards by a single emissions unit at $10,000 per day. NWAPA has
revised section 133.1 to delete the restriction on penalties for
violation of multiple standards by a single emissions unit.
G. OAPCA: Potential To Emit
In granting OAPCA interim approval, EPA stated that OAPCA must
revise the definition of ``potential to emit'' in OAPCA Reg. 1, section
6.00, to provide that any physical or operational limitation on the
capacity of a source to emit a pollutant shall be treated as part of
its design only if the limitation is Federally enforceable, as required
by 40 CFR 70.2 (definition of potential to emit.)). See 59 FR at 55819.
OAPCA has made this change. See OAPCA Reg. 1, section 6.00 (1998).
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H. SCAPCA: Limitation on Criminal Authority
In granting SCAPCA interim approval, we stated that SCAPCA must
revise SCAPCA Reg. 1, section 2.04(B), to eliminate the limitation on
the control officer's authority to request criminal penalties to cases
in which a violator has failed to correct the violation after a
``reasonable and/or required period of time.'' 59 FR at 55819. SCAPCA
has eliminated this restriction on its criminal penalty authority. See
SCAPCA Reg. 1, section 2.04(B)(1997)
I. YRCAA: Knowing Violations
In granting YRCAA interim approval, we stated that YRCAA must
revise YRCAA Reg. 1, section 2.01, to delete the requirement that civil
violations be ``knowing'' because 40 CFR 70.11 (a)(3)(i) prohibits a
permitting authority from including a mental state as an element of
proof for civil violations. 59 FR at 55819. YRCAA has revised its
regulations to delete this requirement. YRCAA Regulation 1, 5.02 (D)(1)
(2000).
III. What Other Changes Has Washington Made to Its Program--Outside
of Addressing the Interim Approval Issues?
Washington permitting authorities have made several other minor
changes to their operating permits programs since EPA granted
Washington interim approval in 1995. These changes, as well as EPA's
action on the changes, are discussed below.
A. Compliance Assurance Agreement
In a letter dated August 25, 1998, Ecology requested that the
current Compliance Assurance Agreement be part of the program approval
package for the Washington State air operating permits program. This
Compliance Assurance Agreement was negotiated between Ecology,
Washington's local air authorities, EFSEC, the Washington Department of
Health, and EPA. The last signatory party signed the document on
December 23, 1999. EPA has included the Compliance Assurance Agreement
in the docket for this action.
B. SWAPCA Regulations
In a May 23, 1997 letter to EPA, SWAPCA stated that it was
repealing its operating permits rule, SWAPCA ch. 401, and was relying
on the state-wide rule as authority for its operating permits program.
SWAPCA made this change effective November 14, 1997. SWAPCA ch. 401 was
a local rule that restated WAC ch. 173-401, the Ecology's operating
permit rule. This revision only results in a change to the authority
SWAPCA is relying on in issuing its title V permits and is not a
substantive change to the permit issuance process or the terms of title
V permits issued by SWAPCA. Therefore, EPA is approving this change.
C. RCW Ch. 43.05
In 1995, the Washington Legislature enacted the Regulatory Reform
Act of 1995, codified at RCW ch. 43.05. In general, RCW ch. 43.05
precludes Ecology from assessing a civil penalty except where (1) the
violation is of a specific permit term or condition; (2) the violation
is a repeat violation; (3) the violator does not come into compliance
within a specified time period; or (4) the violation ``has a
probability of placing a person in danger of death or bodily harm, has
a probability of causing more than minor environmental harm, or has a
probability of causing physical damage to the property of another in an
amount exceeding one thousand dollars.'' See RCW 43.05.050; 43.05.070.
RCW 43.05.901 provides that if a regulatory agency determines any part
of the statute conflicts with Federal law or program requirements or
with Federal requirements prescribed as a condition to the allocation
of Federal funds to the State of Washington, the conflicting part of
the statute is inoperative to the extent of the conflict.
In letters dated June 10, 1997, and November 20, 1997, EPA advised
Ecology that RCW ch. 43.05. conflicted with the necessary enforcement
authority required for authorization or approval of Federal
environmental programs to Ecology, including the title V operating
permits program. On December 10, 1997, in accordance with RCW
43.05.902, Ecology formally notified the Governor of Washington that a
conflict existed between the Regulatory Reform Act and the requirements
for EPA authorization or approval of certain Federal environmental
programs to Ecology, including the title V operating permits program.
As a result of this determination of an existing conflict, RCW
43.05.040, .050, .060(3), and .070, which prohibits Ecology from
issuing civil penalties except under certain circumstances, do not
apply to Washington's title V program. Counsel for the PSCAA has
provided EPA with a legal opinion stating that the Regulatory Reform
Act does not apply to local air pollution control authorities in
Washington because local air pollution control authorities are not
``regulatory agencies'' within the meaning of the Act. EPA has reviewed
the statutory and regulatory authority relied on by PSCAA's counsel in
reaching this conclusion and agrees that the Act does not constrain the
enforcement authority of local air pollution control authorities and
therefore does not pose a bar to delegation of Clean Air Act programs
to local air pollution control agencies in Washington.
In addition, EPA is relying on the State's interpretation of
another technical assistance law, RCW 43.21A.085 and .087, to conclude
that the law does not impinge on the State's authority to administer
Federal environmental programs, including the title V program. The
Washington Attorney Generals' Office has concluded that RCW 43.21A.085
and .087 do not conflict with Federal authorization requirements
because these provisions implement a discretionary program. EPA
understands from the State's interpretation that technical assistance
visits conducted by the State will not be conducted under the authority
of RCW 43.21A.085 and .087.
D. YRCAA Regulations
YRCAA has recently revised its air regulations. See YRCAA
Regulation 1 (2000). As part of these revisions, YRCAA has adopted a
regulation specifically addressing title V air operating permits, YRCAA
Reg. 1, section 4.04, and has also revised its regulations addressing
general authority for its title V program, such as the YRCAA records
and enforcement provisions. In section 4.04, YRCAA specifically
incorporated Ecology's state-wide operating permit regulation by
reference. This revision only results in a change to the authority
YRCAA is relying on in issuing its title V permits and not a
substantive change to the permit issuance process or the terms of title
V permits issued by YRCAA. Therefore, EPA is approving this change.
EPA has also reviewed the provisions of YRCAA Regulation 1
addressing YRCAA's general authority for its title V program, including
sections 1.03 (Policy), 1.06 (Records), 1.07 (General Provisions), 2.02
(Authority to Collect Fees), 2.03 (Applicable State and Federal
Regulations), 2.04 (Public Participation), 2.05 (Appeals), 5.01
(General Information), 5.01 (Additional or Alternative Enforcement),
5.02 (Penalties). In some instances, these regulations closely follow
the comparable Ecology regulations, but have been rewritten in an
attempt to be more easily understood by the general public. Compare
YRCAA Reg. 1, 1.06, with RCW (70.94.205). The general provisions of the
revised YRCAA regulations which state that the YRCAA regulations are
intended to ``ensure equity and consistency with'' the
[[Page 21]]
Federal Clean Air Act and the Washington Clean Air Act. See YRCAA Reg.
1, 1.03(A)(7); see also YRCAA Reg. 1, 1.06(B) (stating that the YRCAA
records regulation is ``To provide access to any information available
under federal or state law concerning the business of the authority.'')
EPA therefore understands that, to the extent the YRCAA regulations
referenced above are closely modeled after comparable Ecology
regulations, the changes to these YRCAA regulations were not intended
to effect a change in meaning. On that basis, EPA has determined that
the regulations referred to above, in conjunction with the other
provisions of Washington law that apply to sources in YRCAA's
jurisdiction, provide adequate authority for YRCAA's operating permits
program.
IV. Final Action
EPA is granting full approval of the State of Washington's
operating permits program implemented by Ecology, EFSEC, and the seven
local air authorities in Washington. Except with respect to non-trust
lands within the 1873 Survey Area of the Puyallup Reservation,\4\ this
approval does not extend to ``Indian Country'', as defined in 18 U.S.C.
1151. See 64 FR 8247, 8250-8251 (February 19, 1999); 59 FR at 55815,
55818; 59 FR 42552, 42554 (August 18, 1994).
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\4\ As these terms are defined in the Agreement among the
Puyallup Tribe of Indians, local governments in Pierce County, the
State of Washington, the United States, and certain private property
owners dated August 27, 1988.
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V. What Happens If EPA Gets Comments on This Federal Register?
EPA has reviewed the State of Washington's submittal and has
determined that the Washington operating permits program now qualifies
for full approval. Accordingly, EPA is taking final action to fully
approve the air operating permits programs for Ecology, EFSEC, and all
seven of the local air authorities in Washington.
EPA is publishing this rule without prior proposal because the
Agency views this as a noncontroversial action and anticipates no
adverse comments. However, in the proposed rules section of this
Federal Register publication, EPA is publishing a separate document
that will serve as the proposal to grant full approval of the title V
operating permits program submitted by the State of Washington should
adverse comments be filed. This rule will be effective March 5, 2001
without further notice unless the Agency receives adverse comments by
February 1, 2001.
If EPA receives such comments, then EPA will publish a notice
withdrawing this final rule and informing the public that this rule
will not take effect. All public comments received will then be
addressed in a subsequent final rule based on the proposed rule. EPA
will not institute a second comment period. Parties interested in
commenting should do so at this time. If no such comments are received,
the public is advised that this rule will be effective on March 5, 2001
and no further action will be taken on the proposed rule.
VI. Are There Any Administrative Requirements That Apply to This
Action?
Under Executive Order 12866, 58 FR 51735 (October 4, 1993), this
final approval is not a ``significant regulatory action'' and therefore
is not subject to review by the Office of Management and Budget. This
action merely approves state law as meeting federal requirements and
imposes no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this final approval will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
Because this final rule approves pre-existing requirements under state
law and does not impose any additional enforceable duty beyond that
required by state law, it does not contain any unfunded mandate or
significantly or uniquely affect small governments, as described in the
Unfunded Mandates Reform Act of 1995 (Public Law 104-4). For the same
reason, this final approval also does not significantly or uniquely
affect the communities of tribal governments, as specified by Executive
Order 13084, 63 FR 27655 (May 10, 1998). This rule will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132, 64 FR 43255 (August 10, 1999),
because it merely approves a state rule implementing a federal
standard, and does not alter the relationship or the distribution of
power and responsibilities established in the Clean Air Act. This final
approval also is not subject to Executive Order 13045 (62 FR 19885,
April 23, 1997), because it is not economically significant.
As this in not a ``major'' rule as defined by 5 U.S.C. 804(2), EPA
will not submit a report containing this rule and other required
information to the U.S. Senate, the U.S. House of Representatives, and
the Comptroller General of the United States prior to publication of
this rule in the Federal Register, as specified in the Congressional
Review Act, 5 U.S.C. 801 et seq.
As required by section 3 of Executive Order 12988, 61 FR 4729,
(February 7, 1996), in issuing this proposed rule, EPA has taken the
necessary steps to eliminate drafting errors and ambiguity, minimize
potential litigation, and provide a clear legal standard for affected
conduct. EPA has complied with Executive Order 12630, 53 FR 8859 (March
15, 1988), by examining the takings implications of the rule in
accordance with the ``Attorney General's Supplemental Guidelines for
the Evaluation of Risk and Avoidance of Unanticipated Takings'' issued
under the executive order. This proposed rule does not impose an
information collection burden under the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by March 5, 2001. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. See CAA section 307(b)(2).
List of Subjects in 40 CFR Part 70
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Operating permits,
Reporting and recordkeeping requirements.
Dated: December 15, 2000.
Ronald A. Kreizenbeck,
Acting Regional Administrator, Region 10.
40 CFR part 70, chapter I, title 40 of the Code of Federal
Regulations is amended as follows:
PART 70--[AMENDED]
1. The authority citation for part 70 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
2. In appendix A to part 70, the entry for Washington is amended by
revising paragraphs (a), (b), (c), (d), (e), (f), (g), (h), and (i) to
read as follows:
[[Page 22]]
Appendix A to Part 70--Approval Status of State and Local Operating
Permits Programs
* * * * *
Washington
(a) Department of Ecology (Ecology): submitted on November 1,
1993; interim approval effective on December 9, 1994; revisions
submitted on June 5, 1996, October 3, 1996, August 25, 1998, and May
24, 1999; full approval effective on March 5, 2001.
(b) Energy Facility Site Evaluation Council (EFSEC): submitted
on November 1, 1993; interim approval effective on December 9, 1994;
revisions submitted on June 5, 1996, October 3, 1996, August 25,
1998, and May 24, 1999; full approval effective on March 5, 2001.
(c) Benton County Clean Air Authority (BCCAA): submitted on
November 1, 1993; interim approval effective on December 9, 1994;
revisions submitted on June 5, 1996, October 3, 1996, August 25,
1998, and May 24, 1999; full approval effective on March 5, 2001.
(d) Northwest Air Pollution Authority (NWAPA): submitted on
November 1, 1993; interim approval effective on December 9, 1994;
revisions submitted on June 5, 1996, October 3, 1996, August 25,
1998, and May 24, 1999; full approval effective on March 5, 2001.
(e) Olympic Air Pollution Control Authority (OAPCA): submitted
on November 1, 1993; interim approval effective on December 9, 1994;
revisions submitted on June 5, 1996, October 3, 1996, August 25,
1998, and May 24, 1999; full approval effective on March 5, 2001.
(f) Puget Sound Clean Air Agency (PSCAA): submitted on November
1, 1993; interim approval effective on December 9, 1994; revisions
submitted on June 5, 1996, October 3, 1996, August 25, 1998, and May
24, 1999; full approval effective on March 5, 2001.
(g) Spokane County Air Pollution Control Authority (SCAPCA):
submitted on November 1, 1993; interim approval effective on
December 9, 1994; revisions submitted on June 5, 1996, October 3,
1996, August 25, 1998, and May 24, 1999; full approval effective on
March 5, 2001.
(h) Southwest Clean Air Agency (SWCAA): submitted on November 1,
1993; interim approval effective on December 9, 1994; revisions
submitted on June 5, 1996, October 3, 1996, August 25, 1998, and May
24, 1999; full approval effective on March 5, 2001.
(i) Yakima Regional Clean Air Authority (YRCAA): submitted on
November 1, 1993; interim approval effective on December 9, 1994;
revisions submitted on June 5, 1996, October 3, 1996, August 25,
1998, and May 24, 1999; full approval effective on March 5, 2001.
* * * * *
[FR Doc. 00-33302 Filed 12-29-00; 8:45 am]
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