[Federal Register: December 2, 2002 (Volume 67, Number 231)]
[Rules and Regulations]
[Page 71479-71482]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02de02-20]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[FRL-7415-2]
Clean Air Act Approval of Revision to Operating Permits Program
in Washington
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is taking final action to approve, as a revision to
Washington's title V air operating permits program, revisions to
Washington's regulations for insignificant emissions units and other
minor revisions to Washington's title V regulations. In a notice of
deficiency published in the Federal Register on January 2, 2002 (67 FR
73), EPA notified Washington of EPA's finding that Washington's
provisions for insignificant emissions units do not meet minimum
Federal requirements for program approval. Final approval of this
program revision resolves the deficiency identified in the Notice of
Deficiency.
EFFECTIVE DATE: January 2, 2003.
ADDRESSES: Copies of Washington's submittal and other supporting
information used in developing this action are available for inspection
during normal business hours at the U.S. Environmental Protection
Agency, Region 10, 1200 Sixth Avenue, Seattle, Washington, 98101.
Interested persons wanting to examine these documents should make an
appointment with the appropriate office at least 24 hours before the
visiting day. A reasonable fee may be charged for copies.
FOR FURTHER INFORMATION CONTACT: Jeff Kenknight, Office of Air Quality
(OAQ-107), U.S. Environmental Protection Agency, Region 10, 1200 Sixth
Avenue, Seattle, Washington 98101, (206) 553-6641.
SUPPLEMENTARY INFORMATION:
I. Background
The Clean Air Act (CAA) requires all State and local permitting
authorities to develop operating permits programs that meet the
requirements of title V of the Act, 42 U.S.C. 7661-7661f, and its
implementing regulations, 40 CFR part 70. Washington's operating
permits program was submitted in response to this directive. EPA
granted interim approval to Washington's air operating permits program
on November 9, 1994 (59 FR 55813). EPA repromulgated final interim
approval of Washington's operating permits program on one issue, along
with a notice of correction, on December 8, 1995 (60 FR 62992).
Washington's title V operating permits program is implemented by
the Washington Department of Ecology (Ecology), the Washington Energy
Facility Site Evaluation Commission (EFSEC), and seven local air
pollution control authorities: The Benton Clean Air Authority (BCAA);
the Northwest Air Pollution Authority (NWAPA); the Olympic Regional
Clean Air Authority (ORCAA); the Puget Sound Clean Air Agency (PSCAA);
the Spokane County Air Pollution Control Authority
[[Page 71480]]
(SCAPCA); the Southwest Clean Air Agency (SWCAA); and the Yakima
Regional Clean Air Authority (YRCAA). After these State and local
agencies revised their operating permits programs to address the
conditions of the interim approval, EPA promulgated final full approval
of Washington's title V operating permits program on August 13, 2001
(66 FR 42439).
On May 15, 2002, Ecology proposed revisions to its regulations for
insignificant emissions units (IEU), as well as other minor revisions
to its title V regulations. The proposed revisions to Ecology's IEU
regulations were intended to resolve a deficiency in Washington's title
V program identified by EPA in a notice of deficiency published in the
Federal Register on January 2, 2002 (67 FR 73). On June 28, 2002, EPA
proposed to approve Ecology's proposed revisions to its title V
regulations at the same time that Ecology was considering and taking
public comment on the proposed changes. See 67 FR 43575. The public
comment period on the Ecology regulations ended on June 21, 2002. In
response to comments received by Ecology during that public comment
process, Ecology made minor changes to its proposed title V revisions.
On September 26, 2002, Ecology submitted the final revisions to its
title V regulations and asked EPA to give final approval to the
revisions.
EPA received no comments on its proposal to approve Ecology's
proposed revisions to its title V regulations. EPA has reviewed
Ecology's final submittal and has determined that the minor changes
made by Ecology in response to public comment at the state level do not
change the substance of the regulatory revisions proposed by Ecology
and continue to meet the requirements of part 70. Accordingly, EPA is
taking final action to approve Ecology's final revisions to its IEU
provisions, as well as the other minor revisions to its title V
regulations.
The version of WAC 173-401-530 (Ecology's IEU provision) finalized
by Ecology is identical to the proposed rule submitted to EPA in May
2002. Ecology did make a minor change to the definition of ``continuous
compliance,'' which is used in the IEU provision as well as elsewhere
in Ecology's title V regulations in describing the compliance
certification obligations of permittees. The definition of ``continuous
compliance'' proposed by Ecology was identical to the definition in the
instructions to the standard annual compliance certification form
developed by EPA for use by permittees subject to the Federal operating
permits program. See http://www.epa.gov/oar/oaqps/permits/p71forms.html.
Under that definition, a permittee could certify
continuous compliance if there were no ``deviations and no other
information that indicates deviations, except for malfunctions or
upsets during which compliance is not required.'' The final definition
adopted by Ecology states that a permittee could certify continuous
compliance if there were no ``deviations and no other information that
indicates deviations, except for unavoidable excess emissions or other
operating conditions during which compliance is not required.'' Ecology
has clarified that nothing in the final definition of ``continuous
compliance'' it adopted was intended to take a position on whether
compliance is or is not required during unavoidable excess emissions or
other operating conditions. EPA therefore continues to believe that the
definition of ``continuous compliance'' is approvable. As noted by EPA
in the proposal and by Ecology during its rulemaking process, however,
Ecology would be required to later revise its definition of
``continuous compliance'' if EPA later adopts a definition of this term
after notice and comment rulemaking and Ecology's definition is not
consistent with the Federal definition. See 67 FR 43577.
Ecology also added a sentence to the proposed definition of
``intermittent compliance,'' which is also used in describing the
compliance certification obligations of permittees. The added sentence
clarifies that a certification of intermittent compliance is
appropriate where the monitoring data or other information shows there
are periods of noncompliance or periods of time during which monitoring
required by the permit was not performed or recorded. EPA finds this
definition approvable, subject again to the qualification that if EPA
later adopts a definition of ``intermittent compliance'' after notice
and comment rulemaking and if the Ecology definition is not consistent
with the Federal definition, Ecology would be required to later revise
its definition.
Ecology also made a further change to the definition of ``major
source'' in its final title V revisions. See WAC 173-401-200. In the
final rule adopted by Ecology, the definition of ``major source'' is
consistent with EPA's recent amendments to the definition of ``major
source'' in part 70 in all respects. See 66 FR 59161 (November 27,
2001). As originally proposed, the Ecology definition was more
stringent than EPA's definition in one respect. See 67 FR 43577.
Because the final definition of ``major source'' adopted by Ecology is
consistent with the definition in part 70, EPA continues to believe
that Ecology's final change to the definition of ``major source'' is
approvable.
Finally, Ecology made a minor change to its proposed revision to
the time for reporting of deviations that do not represent a potential
threat to human health or safety.\1\ See WAC 173-401-615(3)(b). As
proposed, such a deviation was required to be reported no later than 30
days after the end of the month during which the deviation is
discovered or as part of routine emission monitoring reports, whichever
occurred first. In the final version, the rule requires such deviations
to be reported no later than 30 days after the end of the month during
which the deviation is discovered. This is still more stringent that
the previous version of Ecology's rule which gave permitting
authorities the discretion to require reporting of ``other deviations''
(that is, deviations that do not represent a potential threat to human
health or safety) either no later than 30 days after the end of the
month during which the deviation is discovered or as part of routine
emission monitoring reports. EPA therefore continues to believe that
the final rule adopted by Ecology is consistent with the requirements
of part 70.
---------------------------------------------------------------------------
\1\ Reporting of deviations that represent a potential threat to
human health and safety continues to be required as soon as
possible, but in no case later than twelve hours after the deviation
is discovered. WAC 173-401-615(3)(b).
---------------------------------------------------------------------------
II. Final Action
EPA is taking final action to approve as a revision to Ecology's
title V air operating permits program revisions to Ecology's
regulations for IEUs, specifically, revisions to WAC 173-401-530(2)(c)
and the deletion of WAC 173-401-530(2)(d). EPA has determined that
these changes meet the requirements of title V and part 70 relating to
IEUs, and adequately address the deficiency identified in the notice of
deficiency published in the Federal Register on January 2, 2002 (67 FR
73). EPA is also approving the addition of definitions for ``continuous
compliance'' and ``intermittent compliance,'' the change to the
definition of ``major source,'' changes to clarify that the use of a
standard application form is not required if all required information
is provided by the applicant, and a change to the time frame for the
prompt reporting of permit deviations. Because the revisions chapter
173-401 apply throughout the State of Washington, this approval applies
to all State and local agencies that implement Washington's operating
permits program. As discussed above, those agencies include
[[Page 71481]]
Ecology, EFSEC, BCAA, NWAPA, ORCAA, PSCAA, SCAPCA, SWCAA, and YRCAA.
Consistent with EPA's proposal to approve these revisions, this
approval does not extend to ``Indian Country,'' as defined in 18 U.S.C.
1151, except with respect to non-trust lands within the 1873 Survey
Area of the Puyallup Reservation.\2\ See 66 FR 42439, 42440 (August 13,
2001); 64 FR 8247, 8250-8251 (February 19, 1999); 59 FR 42552, 42554
(August 18, 1994).
---------------------------------------------------------------------------
\2\ As these terms are defined in the Agreement dated August 27,
1988, among the Puyallup Tribe of Indians, local governments in
Pierce County, the State of Washington, the United States, and
certain private property owners.
---------------------------------------------------------------------------
III. Administrative Requirements
Under Executive Order 12866, ``Regulatory Planning and Review'' (58
FR 51735, October 4, 1993), this action is not a ``significant
regulatory action'' and therefore is not subject to review by the
Office of Management and Budget. Under the Regulatory Flexibility Act
(5 U.S.C. 601 et seq.), the Administrator certifies that this rule will
not have a significant economic impact on a substantial number of small
entities because it merely approves State law as meeting Federal
requirements and imposes no additional requirements beyond those
imposed by State law. This rule does not contain any unfunded mandates
and does not significantly or uniquely affect small governments, as
described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-
4) because it approves pre-existing requirements under State law and
does not impose any additional enforceable duties beyond that required
by State law. This rule also does not have tribal implications because
it will not have a substantial direct effect on one or more Indian
tribes, on the relationship between the Federal Government and Indian
tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian tribes, as specified by Executive
Order 13175, ``Consultation and Coordination with Indian Tribal
Governments'' (65 FR 67249, November 9, 2000). This rule also does not
have Federalism implications because it will not have substantial
direct effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government, as specified
in Executive Order 13132, ``Federalism'' (64 FR 43255, August 10,
1999). The rule merely approves existing requirements under State law,
and does not alter the relationship or the distribution of power and
responsibilities between the State and the Federal government
established in the Clean Air Act. This rule also is not subject to
Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) or
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355
(May 22, 2001), because it is not a significantly regulatory action
under Executive Order 12866. This action will not impose any collection
of information subject to the provisions of the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq., other than those previously approved and
assigned OMB control number 2060-0243. For additional information
concerning these requirements, see 40 CFR part 70. An agency may not
conduct or sponsor, and a person is not required to respond to, a
collection of information unless it displays a currently valid OMB
control number.
In reviewing State operating permit programs submitted pursuant to
title V of the Clean Air Act, EPA will approve State programs provided
that they meet the requirements of the Clean Air Act and EPA's
regulations codified at 40 CFR part 70. In this context, in the absence
of a prior existing requirement for the State to use voluntary
consensus standards (VCS), EPA has no authority to disapprove a State
operating permit program for failure to use VCS. It would, thus, be
inconsistent with applicable law for EPA, when it reviews an operating
permit program, to use VCS in place of a State program that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by January 31, 2003. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. See CAA section 307(b)(2).
List of Subjects in 40 CFR Part 70
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Operating permits,
Reporting and recordkeeping requirements.
Dated: November 20, 2002.
Ronald A. Kreizenbeck,
Deputy Regional Administrator, Region 10.
40 CFR part 70 is amended as follows:
PART 70--[AMENDED]
1. The authority citation for part 70 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
2. In appendix A to part 70, the entry for Washington is revised to
read as follows:
Appendix A to Part 70--Approval Status of State and Local Operating
Permits Programs
* * * * *
Washington
(a) Department of Ecology (Ecology): Submitted on November 1, 1993;
interim approval effective on December 9, 1994; revisions submitted on
June 5, 1996, October 3, 1996, August 25, 1998, and May 24, 1999; full
approval effective on September 12, 2001; revision submitted on
September 26, 2002; revision approved January 2, 2003.
(b) Energy Facility Site Evaluation Council (EFSEC): Submitted on
November 1, 1993; interim approval effective on December 9, 1994;
revisions submitted on June 5, 1996, October 3, 1996, August 25, 1998,
and May 24, 1999; full approval effective on September 12, 2001;
revision submitted on September 26, 2002; revision approved January 2,
2003.
(c) Benton Clean Air Authority (BCAA): Submitted on November 1,
1993; interim approval effective on
[[Page 71482]]
December 9, 1994; revisions submitted on June 5, 1996, October 3, 1996,
August 25, 1998, and May 24, 1999; full approval effective on September
12, 2001; revision submitted on September 26, 2002; revision approved
January 2, 2003.
(d) Northwest Air Pollution Authority (NWAPA): Submitted on
November 1, 1993; interim approval effective on December 9, 1994;
revisions submitted on June 5, 1996, October 3, 1996, August 25, 1998,
and May 24, 1999; full approval effective on September 12, 2001;
revision submitted on September 26, 2002; revision approved January 2,
2003.
(e) Olympic Regional Clean Air Authority (ORCAA): Submitted on
November 1, 1993; interim approval effective on December 9, 1994;
revisions submitted on June 5, 1996, October 3, 1996, August 25, 1998,
and May 24, 1999; full approval effective on September 12, 2001;
revision submitted on September 26, 2002; revision approved January 2,
2003.
(f) Puget Sound Clean Air Agency (PSCAA): Submitted on November 1,
1993; interim approval effective on December 9, 1994; revisions
submitted on June 5, 1996, October 3, 1996, August 25, 1998, and May
24, 1999; full approval effective on September 12, 2001; revision
submitted on September 26, 2002; revision approved January 2, 2003.
(g) Spokane County Air Pollution Control Authority (SCAPCA):
Submitted on November 1, 1993; interim approval effective on December
9, 1994; revisions submitted on June 5, 1996, October 3, 1996, August
25, 1998, and May 24, 1999; full approval effective on September 12,
2001; revision submitted on September 26, 2002; revision approved
January 2, 2003.
(h) Southwest Clean Air Agency (SWCAA): Submitted on November 1,
1993; interim approval effective on December 9, 1994; revisions
submitted on June 5, 1996, October 3, 1996, August 25, 1998, and May
24, 1999; full approval effective on September 12, 2001; revision
submitted on September 26, 2002; revision approved January 2, 2003.
(i) Yakima Regional Clean Air Authority (YRCAA): Submitted on
November 1, 1993; interim approval effective on December 9, 1994;
revisions submitted on June 5, 1996, October 3, 1996, August 25, 1998,
and May 24, 1999; full approval effective on September 12, 2001;
revision submitted on September 26, 2002; revision approved January 2,
2003.
* * * * *
[FR Doc. 02-30465 Filed 11-29-02; 8:45 am]
BILLING CODE 6560-50-P