WSR 02-19-078

PERMANENT RULES

DEPARTMENT OF ECOLOGY


[ Order 02-02 -- Filed September 16, 2002, 12:20 p.m. ]

Date of Adoption: September 16, 2002.

Purpose: This amendment to chapter 173-401 WAC is primarily to incorporate changes to the insignificant emissions units provisions of the existing rule. We amended the definition of "major source" to match a federal change. We added the definitions of "continuous compliance" and "intermittent compliance," in order to clarify expectations on compliance certification forms.

Citation of Existing Rules Affected by this Order: Amending chapter 173-401 WAC.

Statutory Authority for Adoption: RCW 70.94.161(2).

Adopted under notice filed as WSR 02-10-031 on April 24, 2002.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 1, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 1, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 5, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 4, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.
Effective Date of Rule: Thirty-one days after filing.

September 16, 2002

Tom Fitzsimmons

Director

OTS-5600.4


AMENDATORY SECTION(Amending Order 93-30, filed 5/17/94, effective 6/17/94)

WAC 173-401-200   Definitions.   The definitions of terms contained in chapter 173-400 WAC are incorporated by reference, unless otherwise defined here. Unless a different meaning is clearly required by context, the following words and phrases, as used in this chapter, shall have the following meanings:

(1) "Affected source" means a source that includes one or more affected units.

(2) "Affected states" are the states or federally-recognized Tribal Nations:

(a) Whose air quality may be affected when a chapter 401 permit, permit modification, or permit renewal is being proposed; or

(b) That are within fifty miles of the permitted source.

(3) "Affected unit" means a fossil-fuel fired combustion device or a source that opts-in under 40 CFR part 74, that is subject to any emission reduction requirement or limitation under the Acid Rain Program.

(4) "Applicable requirement" means all of the following as they apply to emissions units in a chapter 401 source (including requirements that have been promulgated or approved by EPA, ecology or a local authority through rule making at the time of permit issuance but have future-effective compliance dates):

(a) The following provisions of the Federal Clean Air Act (FCAA):

(i) Any standard or other requirement provided for in the applicable implementation plan approved or promulgated by EPA through rule making under Title I of the FCAA (Air Pollution Prevention and Control) that implements the relevant requirements of the FCAA, including any revisions to that plan promulgated in 40 CFR 52;

(ii) Any term or condition of any preconstruction permits issued pursuant to regulations approved or promulgated through rule making under Title I, including parts C (Prevention of Significant Deterioration) or D (Plan Requirements for Nonattainment Areas), of the FCAA;

(iii) Any standard or other requirement under section 111 (New Source Performance Standards) of the FCAA, including section 111(d);

(iv) Any standard or other requirement under section 112 (Hazardous Air Pollutants) of the FCAA, including any requirement concerning accident prevention under section 112 (r)(7) of the FCAA;

(v) Any standard or other requirement of the acid rain program under Title IV of the FCAA (Acid Deposition Control) or the regulations promulgated thereunder;

(vi) Any requirements established pursuant to section 504(b) or section 114 (a)(3) of the FCAA;

(vii) Any standard or other requirement governing solid waste incineration, under section 129 of the FCAA;

(viii) Any standard or other requirement for consumer and commercial products, under section 183(e) of the FCAA;

(ix) Any standard or other requirement for tank vessels, under section 183(f) of the FCAA;

(x) Any standard or other requirement of the program to control air pollution from outer continental shelf sources, under section 328 of the FCAA;

(xi) Any standard or other requirement of the regulations promulgated to protect stratospheric ozone under Title VI of the FCAA, unless the administrator has determined that such requirements need not be contained in a Title V permit; and

(xii) Any national ambient air quality standard or increment or visibility requirement under part C of Title I of the FCAA, but only as it would apply to temporary sources permitted pursuant to WAC 173-401-635.

(b) Chapter 70.94 RCW and rules adopted thereunder. This includes requirements in regulatory orders issued by the permitting authority.

(c) In permits issued by local air pollution control authorities, the requirements of any order or regulation adopted by the authority.

(d) Chapter 70.98 RCW and rules adopted thereunder.

(e) Chapter 80.50 RCW and rules adopted thereunder.

(5) "Chapter 401 permit" or "permit" means any permit or group of permits covering a chapter 401 source that is issued, renewed, amended, or revised pursuant to this chapter.

(6) "Chapter 401 source" means any source subject to the permitting requirements of this chapter.

(7) "Continuous compliance" means collection of all monitoring data required by the permit under the data collection frequency required by the permit, with no deviations, and no other information that indicates deviations, except for unavoidable excess emissions or other operating conditions during which compliance is not required. Monitoring data includes information from instrumental (e.g., CEMS, COMS, or parameter monitors) and noninstrumental (e.g., visual observation, inspection, recordkeeping) forms of monitoring.

(8) "Delegated authority" means an air pollution control authority that has been delegated the permit program pursuant to RCW 70.94.161 (2)(b).

(((8))) (9) "Designated representative" shall have the meaning given to it in section 402(26) of the FCAA and the regulations promulgated thereunder and in effect on April 7, 1993.

(((9))) (10) "Draft permit" means the version of a permit for which the permitting authority offers public participation or affected state review.

(((10))) (11) "Emissions allowable under the permit" means an enforceable permit term or condition determined at issuance to be required by an applicable requirement that establishes an emissions limit (including a work practice standard) or an enforceable emissions cap that the source has assumed to avoid an applicable requirement to which the source would otherwise be subject.

(((11))) (12) "Emissions unit" means any part or activity of a stationary source that emits or has the potential to emit any regulated air pollutant or any pollutant listed under section 112(b) of the FCAA. This term is not meant to alter or affect the definition of the term "unit" for purposes of Title IV of the FCAA.

(((12))) (13) The "EPA" or the "administrator" means the administrator of the U.S. Environmental Protection Agency or her/his designee.

(((13))) (14) "Federal Clean Air Act" or "FCAA" means the Federal Clean Air Act, also known as Public Law 88-206, 77 Stat. 392. December 17, 1963, 42 U.S.C. 7401 et seq., as last amended by the Clean Air Act Amendments of 1990, P.L. 101-549, November 15, 1990.

(((14))) (15) "Final permit" means the version of a chapter 401 permit issued by the permitting authority that has completed all review procedures required by this chapter and 40 CFR 70.7 and 70.8.

(((15))) (16) "General permit" means a permit which covers multiple similar sources or emissions units in lieu of individual permits being issued to each source.

(((16))) (17) "Insignificant activity" or "insignificant emissions unit" means any activity or emissions unit located at a chapter 401 source which qualifies as insignificant under the criteria listed in WAC 173-401-530. These units and activities are exempt from permit program requirements except as provided in WAC 173-401-530.

(((17))) (18) "Intermittent compliance" means any form of compliance other than continuous compliance. A certification of intermittent compliance under WAC 173-401-630(5) shall be filed where the monitoring data or other information available to the permittee shows either there are periods of noncompliance, or periods of time during which the monitoring required by the permit was not performed or recorded.

(19) "Major source" means any stationary source (or any group of stationary sources) that are located on one or more contiguous or adjacent properties, and are under common control of the same person (or persons under common control) belonging to a single major industrial grouping and that are described in (a), (b), or (c) of this subsection. For the purposes of defining "major source," a stationary source or group of stationary sources shall be considered part of a single industrial grouping if all of the pollutant emitting activities at such source or group of sources on contiguous or adjacent properties belong to the same major group (i.e., all have the same two-digit code) as described in the Standard Industrial Classification Manual, 1987.

(a) A major source under section 112 of the FCAA, which is defined as any stationary source or group of stationary sources located within a contiguous area and under common control that emits or has the potential to emit, in the aggregate, ten tons per year (tpy) or more of any hazardous air pollutant which has been listed pursuant to section 112(b) of the FCAA, or twenty-five tpy or more of any combination of such hazardous air pollutants. Notwithstanding the preceding sentence, emissions from any oil or gas exploration or production well (with its associated equipment) and emissions from any pipeline compressor or pump station shall not be aggregated with emissions from other similar units, whether or not such units are in a contiguous area or under common control, to determine whether such units or stations are major sources; or

(b) A major stationary source of air pollutants, as defined in section 302 of the FCAA, that directly emits or has the potential to emit, one hundred tpy or more of any air pollutant (including any major source of fugitive emissions of any such pollutant). The fugitive emissions of a stationary source shall not be considered in determining whether it is a major stationary source for the purposes of this section, unless the source belongs to one of the following categories of stationary source:

(i) Coal cleaning plants (with thermal dryers);

(ii) Kraft pulp mills;

(iii) Portland cement plants;

(iv) Primary zinc smelters;

(v) Iron and steel mills;

(vi) Primary aluminum ore reduction plants;

(vii) Primary copper smelters;

(viii) Municipal incinerators capable of charging more than two hundred fifty tons of refuse per day;

(ix) Hydrofluoric, sulfuric, or nitric acid plants;

(x) Petroleum refineries;

(xi) Lime plants;

(xii) Phosphate rock processing plants;

(xiii) Coke oven batteries;

(xiv) Sulfur recovery plants;

(xv) Carbon black plants (furnace process);

(xvi) Primary lead smelters;

(xvii) Fuel conversion plants;

(xviii) Sintering plants;

(xix) Secondary metal production plants;

(xx) Chemical process plants;

(xxi) Fossil-fuel boilers (or combination thereof) totaling more than two hundred fifty million British thermal units per hour heat input;

(xxii) Petroleum storage and transfer units with a total storage capacity exceeding three hundred thousand barrels;

(xxiii) Taconite ore processing plants;

(xxiv) Glass fiber processing plants;

(xxv) Charcoal production plants;

(xxvi) Fossil-fuel-fired steam electric plants of more than two hundred fifty million British thermal units per hour heat input; or

(xxvii) All other stationary source categories, which as of August 7, 1980, were being regulated by a standard promulgated under section 111 or 112 of the FCAA((, but only with respect to those air pollutants that have been regulated for that category));

(c) A major stationary source as defined in part D of Title I of the FCAA, including:

(i) For ozone nonattainment areas, sources with the potential to emit one hundred tpy or more of volatile organic compounds or oxides of nitrogen in areas classified as "marginal" or "moderate," fifty tpy or more in areas classified as "serious," twenty-five tpy or more in areas classified as "severe," and ten tpy or more in areas classified as "extreme"; except that the references in this paragraph to one hundred, fifty, twenty-five, and ten tpy of nitrogen oxides shall not apply with respect to any source for which the administrator has made a finding, under section 182 (f)(1) or (2) of the FCAA, that requirements under section 182(f) of the FCAA do not apply;

(ii) For ozone transport regions established pursuant to section 184 of the FCAA, sources with the potential to emit fifty tpy or more of volatile organic compounds;

(iii) For carbon monoxide nonattainment areas (A) that are classified as "serious," and (B) in which stationary sources contribute significantly to carbon monoxide levels, sources with the potential to emit fifty tpy or more of carbon monoxide; and

(iv) For particulate matter (PM-10) nonattainment areas classified as "serious," sources with the potential to emit seventy tpy or more of PM-10.

(((18))) (20) "Permit modification" means a revision to a chapter 401 permit that meets the requirements of WAC 173-401-725.

(((19))) (21) "Permit program costs" means all reasonable (direct and indirect) costs required to develop and administer a permit program (whether such costs are incurred by the permitting authority or other state or local agencies that do not issue permits directly, but that support permit issuance or administration).

(((20))) (22) "Permit revision" means any permit modification or administrative permit amendment.

(((21))) (23) "Permitting authority" means the department of ecology, local air authority, or other agency authorized under RCW 70.94.161 (3)(b) and approved by EPA to carry out a permit program under this chapter.

(((22))) (24) "Potential to emit" means the maximum capacity of a stationary source to emit any air pollutant under its physical and operational design. Any physical or operational limitation on the capacity of a source to emit an air pollutant, including air pollution control equipment and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, shall be treated as part of its design if the limitation is enforceable by the administrator. This term does not alter or affect the use of this term for any other purposes under the FCAA, or the term "capacity factor" as used in Title IV of the FCAA or the regulations promulgated thereunder.

(((23))) (25) "Proposed permit" means the version of a permit that the permitting authority proposes to issue and forwards to the administrator for review in compliance with 40 CFR 70.8.

(((24))) (26) "Regulated air pollutant" means the following:

(a) Nitrogen oxides or any volatile organic compounds;

(b) Any pollutant for which a national ambient air quality standard has been promulgated;

(c) Any pollutant that is subject to any standard promulgated under section 111 of the FCAA;

(d) Any Class I or II substance subject to a standard promulgated under or established by Title VI of the FCAA; or

(e) Any pollutant subject to a standard promulgated under section 112 or other requirements established under section 112 of the FCAA, including sections 112 (g), (j), and (r), including the following:

(i) Any pollutant subject to requirements under section 112(j) of the FCAA. If the administrator fails to promulgate a standard by the date established pursuant to section 112(e) of the FCAA, any pollutant for which a subject source would be major shall be considered to be regulated on the date eighteen months after the applicable date established pursuant to section 112(e) of the FCAA; and

(ii) Any pollutant for which the requirements of section 112 (g)(2) of the FCAA have been met, but only with respect to the individual source subject to section 112 (g)(2) requirement; and

(f) Any air pollutant for which numerical emission standards, operational requirements, work practices, or monitoring requirements applicable to the source have been adopted under RCW 70.94.331, 70.94.380, and 70.94.395.

(((25))) (27) "Regulated pollutant (for fee calculation)," which is used only for purposes of WAC 173-401-900, means any "regulated air pollutant" except the following:

(a) Carbon monoxide;

(b) Any pollutant that is a regulated air pollutant solely because it is a Class I or II substance subject to a standard promulgated under or established by Title VI of the FCAA; or

(c) Any pollutant that is a regulated air pollutant solely because it is subject to a standard or regulation under section 112(r) of the FCAA.

(d) Any regulated air pollutant emitted from an insignificant activity or emissions unit as determined under WAC 173-401-530.

(((26))) (28) "Renewal" means the process by which a permit is reissued at the end of its term.

(((27))) (29) "Responsible official" means one of the following:

(a) For a corporation: A president, secretary, treasurer, or vice-president of the corporation in charge of a principal business function, or any other person who performs similar policy or decision-making functions for the corporation, or a duly authorized representative of such person if the representative is responsible for the overall operation of one or more manufacturing, production, or operating facilities applying for or subject to a permit and either:

(i) The facilities employ more than two hundred fifty persons or have gross annual sales or expenditures exceeding forty-three million in 1992 dollars; or

(ii) The delegation of authority to such representative is approved in advance by the permitting authority;

(b) For a partnership or sole proprietorship: A general partner or the proprietor, respectively;

(c) For a municipality, state, federal, or other public agency: Either a principal executive officer or ranking elected official. For the purposes of this part, a principal executive officer of a federal agency includes the chief executive officer having responsibility for the overall operations of a principal geographic unit of the agency (e.g., a regional administrator of EPA); or

(d) For affected sources:

(i) The designated representative in so far as actions, standards, requirements, or prohibitions under Title IV of the FCAA or the regulations promulgated thereunder and in effect on April 7, 1993 are concerned; and

(ii) The designated representative for any other purposes under 40 CFR part 70.

(((28))) (30) "Section 502 (b)(10) changes" are changes that contravene an express permit term. Such changes do not include changes that would violate applicable requirements or contravene enforceable permit terms and conditions that are monitoring (including test methods), recordkeeping, reporting, or compliance certification requirements.

(((29))) (31) "Small business stationary source" means a stationary source that:

(a) Is owned or operated by a person that employs one hundred or fewer individuals;

(b) Is a small business concern as defined in the Federal Small Business Act;

(c) Is not a major source;

(d) Does not emit fifty tons or more per year of any regulated pollutant; and

(e) Emits less than seventy-five tons per year of all regulated pollutants.

(((30))) (32) "Solid waste incineration unit" (for purposes of this chapter) means a distinct operating unit of any facility which combusts any solid waste material from commercial or industrial establishments or the general public (including single and multiple residences, hotels, and motels). Such term does not include incinerators or other units required to have a permit under section 3005 of the Solid Waste Disposal Act (42 U.S.C. 6925). The term "solid waste incineration unit" does not include:

(a) Materials recovery facilities (including primary or secondary smelters) which combust waste for the primary purpose of recovering metals;

(b) Qualifying small power production facilities, as defined in section (3)(17)(C) of the Federal Power Act (16 U.S.C. 796 (17)(C)) or qualifying cogeneration facilities as defined in section (3)(18)(B) of the Federal Power Act (16 U.S.C. 796 (18)(B)), which burn homogeneous waste (such as units which burn tires or used oil, but not including refuse-derived fuel) for the production of electric energy or in the case of qualifying cogeneration facilities which burn homogeneous waste for the production of electric energy and steam or forms of useful energy (such as heat) which are used for industrial, commercial, heating, or cooling purposes; or

(c) Air curtain incinerators provided that such incinerators only burn wood wastes, yard wastes, and clean lumber and that such air curtain incinerators comply with opacity limitations to be established by the administrator by rule.

(((31))) (33) "State" means any nonfederal permitting authority, including any local agency, interstate association, or statewide program.

(((32))) (34) "Stationary source" means any building, structure, facility, or installation that emits or may emit any air contaminant. For purposes of this chapter, air contaminants include any regulated air pollutant or any pollutant listed under section 112(b) of the FCAA.

(((33))) (35) "Title I modification" or "modification under any provision of Title I of the FCAA" means any modification under Sections 111 (Standards of Performance for New Stationary Sources) or 112 (Hazardous Air Pollutants) of the FCAA and any physical change or change in the method of operations that is subject to the preconstruction review regulations promulgated under Parts C (Prevention of Significant Deterioration) and D (Plan Requirements for Nonattainment Areas) of Title I of the FCAA.

[Statutory Authority: Chapter 70.94 RCW. 94-11-105 (Order 93-30), 173-401-200, filed 5/17/94, effective 6/17/94; 93-20-075 (Order 91-68), 173-401-200, filed 10/4/93, effective 11/4/93.]


AMENDATORY SECTION(Amending Order 99-06, filed 8/15/01, effective 9/15/01)

WAC 173-401-300   Applicability.   (1) Chapter 401 sources. The provisions of this chapter apply in all areas of the state of Washington to the following sources:

(a) Any source required by the FCAA to have an operating permit. These include the following sources:

(i) Any major source as defined in WAC 173-401-200(((18))).

(ii) Any source, including an area source, subject to a standard, limitation, or other requirement under section 111 (Standards of Performance for New Stationary Sources) of the FCAA. A small municipal waste combustion unit constructed on or before August 30, 1999, and regulated under WAC 173-400-050(5) becomes subject to this chapter on July 1, 2002.

(iii) Any source, including an area source, subject to a standard or other requirement under section 112 of the FCAA, except that a source is not required to obtain a permit solely because it is subject to regulations or requirements under section 112(r) (Prevention of Accidental Releases) of the FCAA.

(iv) Any solid waste incineration units required to obtain permits under section 129 of the FCAA.

A commercial and industrial solid waste incineration unit constructed on or before November 30, 1999, and regulated under WAC 173-400-050(4) becomes subject to this chapter on July 1, 2002.

(v) Any "affected source" regulated under Title IV (Acid Deposition Control) of the FCAA.

(vi) Any source in a source category designated by the EPA pursuant to 40 CFR Part 70, as amended through April 7, 1993.

(b) Any source that the permitting authority determines may cause or contribute to air pollution in such quantity as to create a threat to the public health or welfare under RCW 70.94.161(4) using the procedures in subsection (5) of this section.

(c) Any other source which chooses to apply for a permit.

(d) Deferral. A source subject to the secondary aluminum production requirements in 40 CFR Part 63, Subpart RRR (in effect on July 1, 2000) that is not a major source and is not located at a major source as defined under 40 CFR 63.2 and is not otherwise required to obtain a chapter 401 permit is deferred from chapter 173-401 WAC until December 4, 2004. This category includes sweat furnaces, aluminum scrap shredders, thermal chip dryers, scrap dryers/delacquering kilns/decoating kilns, group 2 furnaces (processing clean charge only and no reactive fluxing), dross-only furnaces, and rotary dross coolers.

(e) A municipal solid waste landfill constructed, reconstructed or modified before May 30, 1991, and regulated under WAC 173-400-070(9) becomes subject to this chapter on September 20, 2001.


Note: Under 40 CFR 62.14352(e) (in effect on July 1, 2000), an affected landfill must have submitted its chapter 401 application so that by April 6, 2001, the permitting agency was able to determine that it was timely and complete. Under 40 CFR 70.7(b), an affected source may not operate if it has not submitted a timely and complete application.

(2) Source category exemptions.

(a) All sources listed in subsection (1)(a) of this section that are not major sources, affected sources, or solid waste incineration units required to obtain a permit pursuant to section 129(e) of the FCAA, are exempted from the obligation to obtain a chapter 401 permit until such time that:

(i) Ecology completes a rulemaking to determine whether nonmajor sources should be required to obtain permits. During this rulemaking, ecology will consider the compliance information contained in individual permit applications when evaluating the regulatory effectiveness and administrative feasibility of issuing operating permits to nonmajor sources relative to other regulatory options. This rulemaking must be completed no later than three years after the effective date of the permit program; or

(ii) The administrator completes a rulemaking to determine how the program should be structured for nonmajor sources and determines that such sources must obtain operating permits and ecology completes a rule making to adopt ((EPS's)) EPA's revised applicability criteria.

(b) Subsection (2)(a) of this section shall not apply to nonmajor sources subject to a standard or other requirement established under either section 111 or section 112 of the FCAA after July 21, 1992, if, during those rulemakings, the administrator determines that such sources must obtain a permit at an earlier date and, subsequently, ecology completes a rule making to adopt EPS's applicability criteria.

(c) Any source listed in (a) of this subsection exempt from the requirement to obtain a permit under this section may opt to apply for a permit under this chapter.

(d) The following source categories are exempt from the obligation to obtain permit:

(i) All sources and source categories that would be required to obtain a permit solely because they are subject to 40 CFR part 60, Subpart AAA - Standards of Performance for New Residential Wood Heaters; and

(ii) All sources and source categories that would be required to obtain a permit solely because they are subject to part 61, Subpart M - National Emission Standard for Hazardous Air Pollutants for Asbestos, section 6l.145, Standard for Demolition and Renovation.

(3) Emissions units and chapter 401 sources.

The permitting authority shall include in the permit all applicable requirements for all relevant emissions units in the source.

(4) Fugitive emissions. Fugitive emissions from a chapter 401 source shall be included in the permit application and the permit in the same manner as stack emissions, regardless of whether the source category in question is included in the list of sources contained in the definition of major source.

(5) Process for determining threat to public health or welfare. The following criteria shall be used to identify sources that are covered pursuant to subsection (1)(b) of this section:

(a) The source may cause or to contribute air pollution in such quantity as to create a violation of any ambient air quality standard as demonstrated by a dispersion modeling analysis performed in accordance with EPA's dispersion modeling guidelines, monitoring, or other appropriate methods; or

(b) The source may cause or contribute to air pollution in such quantity as to create a significant ambient level of any class A or class B toxic air pollutant contained in chapter 173-460 WAC as demonstrated by a dispersion modeling analysis done in accordance with EPA's dispersion modeling guidelines, monitoring, or other appropriate methods.

(c) Small business stationary sources otherwise covered under (a) and (b) of this subsection are exempt except when all of the following requirements are satisfied:

(i) The source is in an area that currently exceeds or has been projected by ecology to exceed within five years any federal or state air quality standard. Prior to determining that any area threatens to exceed a standard, ecology shall hold a public hearing or hearings within the threatened area.

(ii) Ecology provides justification that requiring a source to have a permit is necessary to meet or to prevent exceeding a federal or state air quality standard.

(6) Permitting authorities shall develop and maintain a list of names of chapter 401 sources within their jurisdictions. This list shall be made available to the public. A chapter 401 source inadvertently omitted from this list is not exempted from the requirement to obtain a permit under this chapter.

(7) Federally enforceable limits. Any source which is defined as a chapter 401 source solely because its potential to emit exceeds the annual tonnage thresholds defined in WAC 173-401-200(((18))) shall be exempt from the requirement to obtain an operating permit when federally enforceable conditions which limit that source's potential to emit to levels below the relevant tonnage thresholds have been established for that source.

(a) In applying for an exemption under this subsection, the owner or operator of the source shall demonstrate to the permitting authority that the source's potential to emit, taking into account any federally enforceable restrictions assumed by the source, does not exceed the tonnage thresholds defined in WAC 173-401-200(((18))). Such demonstrations shall be in accordance with WAC 173-401-520 and shall contain emissions measurement and monitoring data, location of monitoring records, and other information necessary to support the source's emission calculations.

(b) Permitting authorities may use the following approaches to establish federally enforceable limitations:

(i) Regulatory orders. The permitting authority may establish source-specific conditions in a regulatory order issued pursuant to WAC 173-400-090.

(ii) Notice of construction approvals. The permitting authority may establish source-specific conditions in a notice of construction approval issued pursuant to state or local regulations contained in an EPA-approved state implementation plan; or

(iii) General permits. The permitting authority may establish source-category requirements which limit a source's potential to emit through a general permit issued pursuant to RCW 70.94.161(11). Following EPA approval of the general permit, limitations on potential to emit become federally enforceable against a particular source after that source applies for, and receives coverage under the general permit.

(c) A source receiving a federally enforceable limit on its potential to emit shall annually certify that its potential to emit is less than that which would require the source to obtain an operating permit. Such certifications shall contain the information specified in (a) of this subsection.

(d) Notice of issuance of any order or permit which limits a source's potential to emit shall be published in the permit register pursuant to WAC 173-401-805 (2)(e).

[Statutory Authority: Chapter 70.94 RCW, RCW 70.94.141, [70.94.]152, [70.94.]331, [70.94.]510 and 43.21A.080. 01-17-062 (Order 99-06), 173-401-300, filed 8/15/01, effective 9/15/01. Statutory Authority: Chapter 70.94 RCW. 93-20-075 (Order 91-68), 173-401-300, filed 10/4/93, effective 11/4/93.]


AMENDATORY SECTION(Amending Order 91-68, filed 10/4/93, effective 11/4/93)

WAC 173-401-500   Permit applications.   (1) Source identification. Within ninety days after the date that a permitting authority submits for EPA approval a permit program or partial permit program, the permitting authority shall notify each potential chapter 401 source within its jurisdiction that the source may be required to obtain a permit. Failure of the permitting authority to notify a source shall not relieve that source from the obligation to file a timely and complete application.

(2) Application distribution. No later than thirty days after EPA grants final or interim, full or partial, approval to the state program, the responsible permitting authority shall send an application to each potential chapter 401 source within its jurisdiction, and a notice stating a deadline by which an application must be filed. ((Unless otherwise specified in the permit, the permitting authority will send a permit renewal application to each source no less than twenty months from the date of expiration of the source's permit.)) Failure of the permitting authority to distribute permit or renewal applications to an individual source shall not relieve that source from the obligation to file a timely and complete application. Renewal applications shall be sent to the source as specified in WAC 173-401-710.

(3) Duty to apply. For each chapter 401 source, the owner or operator shall submit a timely and complete permit application in accordance with this section. Whenever practicable, the applicant shall utilize methods provided by the permitting authority for electronic transmission of the completed application.

(a) Existing chapter 401 sources. Chapter 401 sources in existence on the date of EPA approval of the state permit program shall submit permit applications no later than one hundred eighty days after EPA approval of the state permitting program.

(b) Existing sources becoming chapter 401 sources due to future regulations. An existing source may become subject to the operating permit program as a result of regulations promulgated after EPA approval of the state permit program. For those sources, a complete application must be submitted within twelve months from the time that the source becomes subject to the permit program.

(c) New or modified sources. New or modified chapter 401 sources which commence operation after EPA approval of the state operating program shall file a complete application to obtain the chapter 401 permit or permit revision within twelve months after commencing operation. Where an existing chapter 401 permit would prohibit such construction or change in operation, the source must obtain a permit revision before commencing operation. The applicant may elect to integrate procedures for new source review and operating permit issuance as described in subsection (10) of this section.

(d) Permit renewal. For purposes of permit renewal, a timely application is one that is submitted at the time specified in WAC 173-401-710.

(e) Applications for initial phase II acid rain permits shall be submitted to the permitting authority by January 1, 1996, for sulfur dioxide, and by January 1, 1998, for nitrogen oxides.

(4) Complete application. To be deemed complete, an application must provide all information required pursuant to WAC 173-401-510, except that applications for permit revision need supply such information only if it is related to the proposed change. Information submitted under WAC 173-401-510 must be sufficient to evaluate the subject source and its application and to determine all applicable requirements. A responsible official shall certify the submitted information consistent with WAC 173-401-520. Unless the permitting authority determines in writing that an application is not complete within sixty days of receipt of the application, such application shall be deemed to be complete, except as otherwise provided in WAC 173-401-700(6). Any notification of incompleteness shall specify the information needed to make the application complete and prescribe a reasonable time frame for response from the applicant. Unless the permitting authority requests additional information or otherwise notifies the applicant of incompleteness within sixty days of receipt of the supplemental information, the application shall be deemed complete. If, while processing an application that has been determined or deemed to be complete, the permitting authority determines that additional information is necessary to evaluate or take final action on that application, it may request such information in writing and set a reasonable deadline for a response. The source's ability to operate without a permit, as set forth in WAC 173-401-705(2), shall be in effect from the date the application is determined or deemed to be complete until the final permit is issued, provided that the applicant submits any requested additional information by the deadline specified by the permitting authority.

(5) Confidential information. In the case where a source has submitted information to the permitting authority under a claim of confidentiality, the permitting authority may also require the source to submit a copy of such information directly to the administrator.

(6) Duty to supplement or correct application. Any applicant who fails to submit any relevant facts or who has submitted incorrect information in a permit application shall, upon becoming aware of such failure or incorrect submittal, promptly submit such supplementary facts or corrected information. In addition, an applicant shall provide additional information as necessary to address any requirements that become applicable to the source after the date it filed a complete application but prior to release of a draft permit.

(7) Completeness criteria. An application is complete when it contains the following information:

(a) ((A completed version of the standard application form or forms)) All of the data described in WAC 173-401-510(2), including the required information for each emission unit (other than insignificant emission units) at the facility, along with any necessary supporting data and calculations. The use of a standard application is not required if all of the data elements required in WAC 173-401-510(2) are provided;

(b) A compliance plan that meets the criteria of WAC 173-401-630; and

(c) Certification by a responsible official of the chapter 401 source of the truth, accuracy, and completeness of the application, as provided in WAC 173-401-520.

(8) EPA notification. The permitting authority shall provide EPA with a copy of all complete permit applications and compliance plans for chapter 401 sources unless EPA waives or modifies this requirement.

(9) Public notice. Ecology shall publish a notice of all applications received under this section in the permit register as required under WAC 173-401-805.

(10) Operating permits for new sources. At the time of filing a notice of construction application under RCW 70.94.152 for the construction of a new source or modification of an existing source, the owner or operator may elect in writing to integrate new source review and operating permit issuance. Procedures for integration of these two processes are as follows:

(a) Modification of existing source. The owner or operator of an existing permitted source applying to modify the source within the meaning of RCW 70.94.030(14) may select integrated review by so indicating on its notice of construction application. The permitting authority shall process the notice of construction application in accordance with the procedures set forth in WAC 173-401-700. The permitting authority shall process the two applications in parallel, and consolidate all required public hearings, comment periods and EPA review periods. A proposed order of approval for the modification shall be provided to EPA for review as provided in WAC 173-401-810, along with a proposed administrative permit amendment to the source's operating permit. The administrative permit amendment shall incorporate into the operating permit the requirements contained in the order of approval. The order of approval shall include compliance requirements for the new or modified emissions units that meet the requirements of WAC 173-401-600 through 173-401-650. The permitting authority shall issue the final permit amendment and order of approval promptly upon conclusion of the EPA review period, unless EPA files a timely objection as provided in 40 CFR 70.8.

(b) Construction of new source. Any person who proposes to construct a new source, within the meaning of RCW 70.94.030(16), may select integrated review by concurrently filing with the permitting authority a notice of construction application and an operating permit application. The permitting authority shall process both applications in accordance with the procedures set forth in WAC 173-401-700. The permitting authority shall process the two applications in parallel, and consolidate all required public hearings, comment periods, and EPA review periods. A proposed order of approval for the new source shall be provided to EPA for review as provided in WAC 173-401-810, along with the proposed operating permit. The permitting authority shall issue the final operating permit and order of approval promptly upon conclusion of the EPA review period, unless EPA files a timely objection as provided in 40 CFR 70.8.

[Statutory Authority: Chapter 70.94 RCW. 93-20-075 (Order 91-68), 173-401-500, filed 10/4/93, effective 11/4/93.]


AMENDATORY SECTION(Amending Order 93-30, filed 5/17/94, effective 6/17/94)

WAC 173-401-530   Insignificant emission units.   (1) General. This section contains criteria for identifying insignificant emission units or activities for purposes of the operating permit program. Designation of an emission unit or activity as insignificant for purposes of this chapter does not exempt the unit or activity from any applicable requirement. An emission unit or activity is insignificant based on one or more of the following approaches:

(a) Actual emissions of all regulated air pollutants from a unit or activity are less than the emission thresholds established in subsection (4) of this section. Such emission units and activities must be listed in the permit application;

(b) The emission unit or activity is listed in WAC 173-401-532 as categorically exempt. Such emission units or activities do not have to be listed in the permit application;

(c) The emission unit or activity is listed in WAC 173-401-533 and is considered insignificant if its size or production rate based on maximum rated capacity is below the specified level. These emission units or activities must be listed in the permit application.

(d) The emission unit or activity generates only fugitive emissions (as defined in WAC 173-400-030(31)), which are subject to no applicable requirement other than generally applicable requirements of the state implementation plan as defined in subsection (2) of this section. These units or activities must be listed on the permit application.

(2) Applicable requirements.

(a) Notwithstanding any other provision of this chapter, no emissions unit or activity subject to a federally enforceable applicable requirement (other than generally applicable requirements of the state implementation plan) shall qualify as an insignificant emissions unit or activity. For purposes of this section, generally applicable requirements of the state implementation plan are those federally enforceable requirements that apply universally to all emission units or activities without reference to specific types of emission units or activities.

(b) The application shall list and the permit shall contain all generally applicable requirements that apply to insignificant emission units or activities in the source.

(c) ((The permit shall not require testing, monitoring, reporting or recordkeeping for insignificant emission units or activities except where generally applicable requirements of the state implementation plan specifically impose these requirements. These requirements identified in the state implementation plan shall be deemed to satisfy the requirements of WAC 173-401-615 and 173-401-630(1).

(d) For insignificant emission units or activities, the source will not need to certify compliance under WAC 173-401-630(5).)) Testing, monitoring, recordkeeping and reporting are not required for insignificant emissions units and activities unless determined by the permitting authority to be necessary to assure compliance or unless it is otherwise required by a generally applicable requirement of the state implementation plan. This section does not affect the authority of ecology and local air authorities to establish case-by-case monitoring requirements as set forth in WAC 173-400-105 or other provisions of law.

(d) Where a permit does not require testing, monitoring, recordkeeping and reporting for insignificant emissions units or activities, the permittee may certify continuous compliance if there were no observed, documented, or known instances of noncompliance during the reporting period. Where a permit requires testing, monitoring, recordkeeping and reporting for insignificant emission units or activities, the permittee may certify continuous compliance when the testing, monitoring, recordkeeping required by the permit revealed no violations during the period, and there were no observed, documented, or known instances of noncompliance during the reporting period.

(3) Permit shield. The permit shield described in WAC 173-401-640 shall not apply to any insignificant emissions unit or activity designated under this section.

(4) Insignificant emission thresholds. An emission unit or activity shall be considered insignificant if it qualifies under subsection (1)(b), (c) or (d) of this section, or if its actual emissions, based on methods approved by the permitting authority, are below the practical quantification limit (PQL), or are less than or equal to all of the following threshold levels:

(a) 5 tons per year of carbon monoxide;

(b) 2 tons per year of nitrogen oxides;

(c) 2 tons per year of sulfur oxides;

(d) 2 tons per year of volatile organic compounds (VOC);

(e) 0.75 tons per year of PM10 (as defined in chapter 173-400-030(((53))));

(f) 0.005 tons per year of lead;

(g) 0.15 tons per year of fluorides;

(h) 0.35 tons per year of sulfuric acid mist;

(i) 0.5 tons per year of hydrogen sulfide;

(j) 0.5 tons per year of total reduced sulfur (including hydrogen sulfide);

(k) 0.000000175 tons per year of municipal waste combustor organics (measured as total tetra-through octa-chlorinated dibenzo-p-dioxins and dibenzofurans);

(m) 0.75 tons per year of municipal waste combustor metals (measured as PM);

(n) 2.0 tons per year of municipal waste combustor acid gases (measured as SO2 and hydrogen chloride);

(o) 2.0 tons per year of ozone depleting substances in aggregate (the sum of Class I and/or Class II substances as defined in Title VI and 40 CFR Part 82);

(p) Thresholds levels for hazardous air pollutants as defined in WAC 173-401-531;

(q) 0.5 tons per year for any regulated air pollutant not listed above or in WAC 173-401-531.

(5) Documentation.

(a) Upon request from the permitting authority the applicant must provide sufficient documentation to enable the permitting authority to determine that the emission unit or activity has been appropriately listed as insignificant.

(b) Upon request from the permitting authority, at any time during the term of the permit, an applicant who lists an activity or emissions unit as insignificant under subsection (1)(a) of this section shall demonstrate to the permitting authority that the actual emissions of the unit or activity are below the emission thresholds listed in subsection (4) of this section.

(6) Permit revision.

If an emission unit or activity that qualifies as insignificant solely on the basis of subsection (1)(a) of this section exceeds one of the emissions thresholds specified in subsection (4) of this section prior to issuance of a permit, the applicant shall promptly amend its permit application to include the relevant activity or emissions unit in the permit, as provided in WAC 173-401-500(6). Once the permit is issued, an activity or emissions unit that qualifies as insignificant solely on the basis of subsection (1)(a) of this section shall not exceed the emissions thresholds specified in subsection (4) of this section, until the permit is modified pursuant to WAC 173-401-725 (Permit modifications).

(7) Local air authority discretion. Local air authorities may establish by rule other criteria for defining insignificant emissions units or activities. At a minimum, such criteria must be at least as stringent as the requirements in subsections (2) and (3) of this section. Insignificant emission units or activities defined by local air authority rule may not exceed threshold levels established under subsection (4) of this section.

[Statutory Authority: Chapter 70.94 RCW. 94-11-105 (Order 93-30), 173-401-530, filed 5/17/94, effective 6/17/94.]


AMENDATORY SECTION(Amending Order 99-06, filed 8/15/01, effective 9/15/01)

WAC 173-401-615   Monitoring and related recordkeeping and reporting requirements.   (1) Monitoring. Each permit shall contain the following requirements with respect to monitoring:

(a) All emissions monitoring and analysis procedures or test methods required under the applicable requirements, including any procedures and methods promulgated pursuant to sections 504(b) or 114 (a)(3) of the FCAA;

(b) Where the applicable requirement does not require periodic testing or instrumental or noninstrumental monitoring (which may consist of recordkeeping designed to serve as monitoring), periodic monitoring sufficient to yield reliable data from the relevant time period that are representative of the source's compliance with the permit, as reported pursuant to subsection (3) of this section. Such monitoring requirements shall assure use of terms, test methods, units, averaging periods, and other statistical conventions consistent with the applicable requirement. Recordkeeping provisions may be sufficient to meet the requirements of this paragraph; and

(c) As necessary, requirements concerning the use, maintenance, and, where appropriate, installation of monitoring equipment or methods.

(2) Recordkeeping. With respect to recordkeeping, the permit shall incorporate all applicable recordkeeping requirements and require, where applicable, the following:

(a) Records of required monitoring information that include the following:

(i) The date, place as defined in the permit, and time of sampling or measurements;

(ii) The date(s) analyses were performed;

(iii) The company or entity that performed the analyses;

(iv) The analytical techniques or methods used;

(v) The results of such analyses; and

(vi) The operating conditions existing at the time of sampling or measurement;

(b) A record describing changes made at the source that result in emissions of a regulated air pollutant subject to an applicable requirement, but not otherwise regulated under the permit, and the emissions resulting from those changes.

(c) Retention of records of all required monitoring data and support information for a period of five years from the date of the monitoring sample, measurement, report, or application. Support information includes all calibration and maintenance records and all original strip-chart recordings for continuous monitoring instrumentation, and copies of all reports required by the permit.

(3) Reporting. With respect to reporting, the permit shall incorporate all applicable reporting requirements and require the following:

(a) Submittal of reports of any required monitoring at least once every six months. All instances of deviations from permit requirements must be clearly identified in such reports. All required reports must be certified by a responsible official consistent with WAC 173-401-520.

(b) Prompt reporting of deviations from permit requirements, including those attributable to upset conditions as defined in the permit, the probable cause of such deviations, and any corrective actions or preventive measures taken. The permitting authority shall define "prompt" in each individual permit in relation to the degree and type of deviation likely to occur and the applicable requirement. For deviations which represent a potential threat to human health or safety, "prompt" means as soon as possible, but in no case later than twelve hours after the deviation is discovered. The source shall maintain a contemporaneous record of all deviations. Other deviations shall be reported no later than thirty days after the end of the month during which the deviation is discovered ((or as part of routine emission monitoring reports)).

(4) Compliance assurance monitoring. 40 CFR Part 64, in effect on July 1, 2000, is adopted by reference.

[Statutory Authority: Chapter 70.94 RCW, RCW 70.94.141, [70.94.]152, [70.94.]331, [70.94.]510 and 43.21A.080. 01-17-062 (Order 99-06), 173-401-615, filed 8/15/01, effective 9/15/01. Statutory Authority: Chapter 70.94 RCW. 93-20-075 (Order 91-68), 173-401-615, filed 10/4/93, effective 11/4/93.]


AMENDATORY SECTION(Amending Order 91-68, filed 10/4/93, effective 11/4/93)

WAC 173-401-710   Permit renewal, revocation and expiration.   (1) Renewal application. The source shall submit a complete permit renewal application to the permitting authority no later than the date established in the permit. This date shall be no less than six months prior to the expiration of the permit. The permitting authority may ((specify a longer time period in writing to the permitted source at least one year before the new application due date)) require that a permit renewal application must be submitted earlier. The permitting agency must mail this written notice to the source at least one year before the new application deadline to ensure that the terms of the permit will not lapse before the permit is renewed. In no event shall the application due date be earlier than eighteen months prior to the expiration of the permit. The permitting authority shall send a permit application to each source at least six months before a complete application is due.

(2) Permit issuance. Permits being renewed are subject to the same procedural requirements, including those for public participation, affected state and EPA review, that apply to initial permit issuance.

(3) Expired permits. Permit expiration terminates the source's right to operate unless a timely and complete renewal application has been submitted consistent with subsection (1) of this section and WAC 173-401-500. All terms and conditions of the permit shall remain in effect after the permit itself expires if a timely and complete permit application has been submitted.

(4) Revocation of permits. The permitting authority may revoke a permit only upon the request of the permittee or for cause. The permitting authority shall provide at least thirty days written notice to the holder of a current operating permit prior to revocation of the permit or denial of a permit renewal application. Such notice shall include an explanation of the basis for the proposed action and afford the permittee/applicant an opportunity to meet with the permitting authority prior to the authority's final decision. A revocation issued under this section may be issued conditionally with a future effective date and may specify that the revocation will not take effect if the permittee satisfies the specified conditions before the effective date. Nothing in this subsection shall limit the permitting authority's authority to issue emergency orders.

[Statutory Authority: Chapter 70.94 RCW. 93-20-075 (Order 91-68), 173-401-710, filed 10/4/93, effective 11/4/93.]


AMENDATORY SECTION(Amending Order 91-68, filed 10/4/93, effective 11/4/93)

WAC 173-401-722   Changes not requiring permit revisions.   (1) General.

(a) A chapter 401 source is authorized to make the changes described in this section without a permit revision, providing the following conditions are met:

(i) The proposed changes are not Title I modifications;

(ii) The proposed changes do not result in emissions which exceed those allowable under the permit, whether expressed as a rate of emissions, or in total emissions;

(iii) The proposed changes do not alter permit terms that are necessary to enforce limitations on emissions from units covered by the permit; and

(iv) The facility provides the administrator and the permitting authority with written notification at least seven days prior to making the proposed changes except that written notification of a change made in response to an emergency shall be provided as soon as possible after the event.

(b) Permit attachments. The source and permitting authority shall attach each notice to their copy of the relevant permit.

(2) Section 502 (b)(10) changes. Pursuant to the conditions in subsection (1) of this section, a chapter 401 source is authorized to make section 502 (b)(10) changes (as defined in WAC 173-401-200(((28)))) without a permit revision.

(a) For each such change, the written notification required under subsection (1)(a)(iv) of this section shall include a brief description of the change within the permitted facility, the date on which the change will occur, any change in emissions, and any permit term or condition that is no longer applicable as a result of the change.

(b) The permit shield authorized under WAC 173-401-640 shall not apply to any change made pursuant to this paragraph.

(3) SIP authorized emissions trading. Pursuant to the conditions in subsection (1) of this section, a chapter 401 source is authorized to trade increases and decreases in emissions in the permitted facility, where the Washington state implementation plan provides for such emissions trades without requiring a permit revision. This provision is available in those cases where the permit does not already provide for such emissions trading.

(a) Under this subsection (3), the written notification required under subsection (1)(a)(iv) of this section shall include such information as may be required by the provision in the Washington state implementation plan authorizing the emissions trade, including at a minimum, when the proposed change will occur, a description of each such change, any change in emissions, the permit requirements with which the source will comply using the emissions trading provisions of the Washington state implementation plan, and the pollutants emitted subject to the emissions trade. The notice shall also refer to the provisions with which the source will comply in the applicable implementation plan and that provide for the emissions trade.

(b) The permit shield described in WAC 173-401-640 shall not extend to any change made under this paragraph. Compliance with the permit requirements that the source will meet using the emissions trade shall be determined according to requirements of the applicable implementation plan authorizing the emissions trade.

(4) Emission caps. Upon the request of the permit applicant, the permitting authority shall issue permits that contain terms and conditions, including all terms required under WAC 173-401-600 through 173-401-630 to determine compliance, allowing for the trading of emissions increases and decreases in the chapter 401 source solely for the purpose of complying with a federally enforceable emissions cap that is established in the permit independent of otherwise applicable requirements. The permit applicant shall include in its application proposed replicable procedures and permit terms that ensure the emissions trades are quantifiable and enforceable. The emissions trading provisions shall not be applied to any emissions units for which emissions are not quantifiable or for which there are no replicable procedures to enforce the emissions trades. The permit shall also require compliance with all applicable requirements.

(a) Under this paragraph, the written notification required under subsection (1)(a)(iv) of this section shall state when the change will occur and shall describe the changes in emissions that will result and how these increases and decreases in emissions will comply with the terms and conditions of the permit.

(b) The permit shield described in WAC 173-401-640 shall extend to terms and conditions that allow such increases and decreases in emissions.

(5) A source making a change under this section shall comply with applicable preconstruction review requirements established pursuant to RCW 70.94.152.

[Statutory Authority: Chapter 70.94 RCW. 93-20-075 (Order 91-68), 173-401-722, filed 10/4/93, effective 11/4/93.]

Washington State Code Reviser's Office