WSR 03-01-107

PROPOSED RULES

PUGET SOUND

CLEAN AIR AGENCY

[ Filed December 18, 2002, 10:05 a.m. ]

Original Notice.

Exempt from preproposal statement of inquiry under RCW 70.94.141(1).

Title of Rule: Amend Regulation I, Section 2.12.

Purpose: To more clearly state that the agency's substantive authority under SEPA includes the ability to require mitigation of the emissions of greenhouse gases to address the impacts of climate change.

Other Identifying Information: Section 2.12 pertains to SEPA substantive authority.

Statutory Authority for Adoption: Chapter 70.94 RCW.

Statute Being Implemented: RCW 70.94.141.

Summary: This proposal clarifies existing language.

Reasons Supporting Proposal: This ability exists under the current language, but the revision provides more clarity.

Name of Agency Personnel Responsible for Drafting: Laurie Halvorson, 110 Union Street, #500, Seattle, WA 98101, (206) 689-4030; Implementation: Dave Kircher, 110 Union Street, #500, Seattle, WA 98101, (206) 689-4050; and Enforcement: Jim Nolan, 110 Union Street, #500, Seattle, WA 98101, (206) 689-4053.

Name of Proponent: Puget Sound Clean Air Agency, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: This proposal will more clearly state that the agency's substantive authority under SEPA includes the ability to require mitigation of the emissions of greenhouse gases to address the impacts of climate change. It will make clearer the agency's intention to mitigate climate change impacts from projects and facilities being permitted. The direct benefits from mitigation may include funding of local mitigation projects, which could include energy conservation or other projects to offset or reduce the greenhouse gas emissions generated by new facilities. Collateral benefits to air quality may result from the reduced combustion of fossil fuels that may occur from mitigation projects.

Proposal Changes the Following Existing Rules: The revised language is intended to make clearer the agency's intention to mitigate climate change impacts from projects and facilities being permitted.

No small business economic impact statement has been prepared under chapter 19.85 RCW. This agency is not subject to the small business economic impact provision of the Administrative Procedure Act.

RCW 34.05.328 does not apply to this rule adoption. Pursuant to RCW 70.94.141(1), RCW 34.05.328 does not apply to this rule adoption.

Hearing Location: Puget Sound Clean Air Agency, 110 Union Street, Suite 500, Seattle, WA 98101, on January 23, 2003, at 9:15 a.m.

Assistance for Persons with Disabilities: Contact Agency Receptionist, (206) 689-4010, by January 16, 2003, TDD (800) 833-6388 or (800) 833-6385 (Braille).

Submit Written Comments to: Dennis McLerran, Puget Sound Clean Air Agency, 110 Union Street, Suite 500, Seattle, WA 98101, fax (206) 343-7522, by January 13, 2003.

Date of Intended Adoption: January 23, 2003.

December 17, 2002

James Nolan

Director - Compliance

AMENDATORY SECTION


REGULATION I SECTION 2.12 SEPA SUBSTANTIVE AUTHORITY


(a) The policies and goals set forth in this section supplement those in the existing authority of the Agency.

(b) Any governmental action on public or private proposals that are not exempt may be conditioned or denied under SEPA to mitigate the environmental impact, subject to the following limitations:

(1) Mitigation measures or denials shall be based on policies, plans, rules, or regulations designated in this article as a basis for the exercise of substantive authority and in effect when the DNS or DEIS is issued. The responsible official shall cite the Agency's SEPA policy that is the basis of any condition or denial under this regulation (for proposals of applicants).

(2) Mitigation measures shall be related to specific, adverse environmental impacts clearly identified in an environmental document on the proposal and shall be stated in writing by the responsible official. Such document may be the permit itself, or may be combined with other Agency documents, or may reference relevant portions of environmental documents.

(3) Mitigation measures shall be reasonable and capable of being accomplished.

(4) Responsibility for implementing mitigation measures may be imposed upon an applicant only to the extent attributable to the identified adverse impacts of its proposal. Voluntary additional mitigation may occur.

(5) The Agency shall consider whether local, state, or federal requirements and enforcement would mitigate an identified significant impact.

(6) To deny a proposal under SEPA, the Agency must find that:

(A) The proposal would be likely to result in significant adverse environmental impacts identified in a final or supplemental EIS prepared pursuant to this regulation; and

(B) Reasonable mitigation measures are insufficient to mitigate the identified impact.

(c) The Agency designates and adopts by reference the following policies, plans, rules, and regulations as the potential bases for the Agency's exercise of substantive authority under SEPA, pursuant to this section:

(1) The Agency shall use all practicable means, consistent with other essential considerations of state policy, to improve and coordinate plans, functions, programs, and resources to the end that the state and its citizens may:

(A) Fulfill the responsibilities of each generation as trustee of the environment for succeeding generations;

(B) Ensure for all people of Washington, safe, healthful, productive, and aesthetically and culturally pleasing surroundings;

(C) Attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences;

(D) Preserve important historic, cultural, and natural aspects of our national heritage;

(E) Maintain, wherever possible, an environment that supports diversity and variety of individual choice;

(F) Achieve a balance between population and resource use that will permit high standards of living and a wide sharing of life's amenities; and

(G) Enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources.

(2) The Agency recognizes that each person has a fundamental and inalienable right to a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment.

(3) The Agency adopts by reference the policies in the following laws and Agency resolutions, regulations, and plans:

(A) Federal and state Clean Air Acts, and regulations adopted thereunder.

(B) Agency Regulations I, II, and III.

(C) Resolutions adopted by the Agency Board of Directors.

(D) Maintenance plans.

(E) Washington State Implementation Plan.

(F) Final Report of the Agency PM2.5 Stakeholder Group, dated October 15, 1999.

(4) The Agency establishes the following additional policies:

(A) Air quality

(i) Policy Background

(a) Air pollution can be damaging to human health, plants and animals, visibility, aesthetics, and the overall quality of life.

(b) The Agency is responsible for monitoring air quality in the Puget Sound area, setting standards, and regulating development to achieve regional air quality standards.

(c) Federal, state, and regional regulations and programs cannot always anticipate or adequately mitigate adverse air quality impacts.

(ii) Policies

(a) To minimize or prevent adverse air quality impacts.

(b) To secure and maintain such levels of air quality as will protect human health and safety and, to the greatest degree practicable, prevent injury to plant and animal life and to property, foster the comfort and convenience of its inhabitants, seek public participation in policy planning and implementation, promote the economic and social development of the Puget Sound area, and facilitate the enjoyment of the natural attractions of the Puget Sound area.

(c) To eliminate emissions of ozone-depleting chlorofluorocarbons and to mitigate emissions of greenhouse gases, in the interests of national and global environmental protection((; and to consider energy efficiency and conservation to reduce greenhouse gases)).

(d) To reduce woodstove emissions by educating the public about the effects of woodstove emissions, other heating alternatives, and the desirability of achieving better emission performance and heating efficiency from woodstoves pursuant to standards adopted by the Department of Ecology; and to encourage replacing uncertified woodstoves with cleaner sources of heat.

(e) To reduce outdoor burning to the greatest extent practical.

(f) To develop and adopt strategies for effectively reducing or eliminating impacts from toxic air contaminants.

(g) To control volatile organic compound (VOC) emissions in order to maintain the National Ambient Air Quality Standard for ozone.

(h) If the responsible official makes a written finding that the applicable federal, state, and/or regional regulations did not anticipate or are inadequate to address the particular impact(s) of a project, the responsible official may condition or deny the proposal to mitigate its adverse impacts.

(B) Land Use

(i) Policy background

(a) Adverse land use impacts may result when a proposed project or land use policy includes uses that may be consistent with applicable zoning requirements but inconsistent with air quality regulations.

(b) Adverse cumulative land use impacts may result when particular uses permitted under the zoning code occur in an area to such an extent that they expose sensitive populations to air quality related health and environmental adverse impacts.

(ii) Policies

(a) To ensure that proposed uses in projects are reasonably compatible with surrounding uses and are consistent with applicable air quality regulations.

(b) To reduce regional air pollution emissions associated with land uses by promoting clean alternative forms of domestic use fuels, including natural gas, in new single and multifamily housing developments within urban growth areas. In addition, to discourage wood as a source of heat for residential development in low-lying areas susceptible to pollution accumulations.

(c) To encourage municipal curbside solid and yard waste collection services at reasonable costs.

(C) Transportation

(i) Policy Background

(a) Excessive traffic can adversely affect regional air quality.

(b) Substantial traffic volumes associated with major projects may adversely impact air quality in surrounding areas.

(ii) Policies

(a) To minimize or prevent adverse traffic impacts that would undermine the air quality of a neighborhood or surrounding areas.

(b) To promote transportation demand and systems management actions designed to reduce vehicle emissions by reducing the use of single occupancy vehicles, reducing traffic congestion, and increasing public transportation services.

(c) To encourage integrating land use and transportation planning.

(d) To emphasize the importance of air quality conformity determinations required for proposed transportation plans, programs, and projects.

(e) To pursue and support alternative and clean fuels projects and programs.

(f) To promote and support land use plans and projects designed to reduce vehicle emissions by reducing the use of single occupant vehicles, number of vehicle miles traveled, and traffic congestion; and supporting the use of public transportation.

(g) In determining the necessary air quality impact mitigation, the responsible official will examine the mitigation proposed by the local jurisdiction.

(D) Cumulative Effects

(i) The analysis of cumulative effects shall include a reasonable assessment of:

(a) The capacity of natural systems, such as air, water, light, and land, to absorb the direct and reasonably anticipated indirect impacts of the proposal, and

(b) The demand upon facilities, services, and natural systems of present, simultaneous, and known future development in the area of the project or action.

(ii) An action or project may be conditioned or denied to lessen or eliminate its cumulative effects on the environment:

(a) When considered together with prior, simultaneous, or induced future development; or

(b) When, taking into account known future development under established zoning or other regulations, it is determined that a project will use more than its share of present and planned facilities, services, and natural systems.

Washington State Code Reviser's Office