PROPOSED RULES
EVALUATION COUNCIL
Original Notice.
Title of Rule: Chapter 463-39 WAC, General and operating permit regulations for air pollution sources.
Purpose: Update the Energy Facility Site Evaluation Council's (EFSEC's) air rules for energy facilities (chapter 463-39 WAC) to be consistent with ecology's requirements for new source review (NSR), prevention of significant deterioration (PSD), air operating permit (AOP), and acid rain permit programs for air emissions. Update EFSEC's adoption of federal news source performance standards (NSPS). Clarify agency procedures for permit application form, source registration and penalties for consistency with ecology regulations and state laws.
Statutory Authority for Adoption: RCW 80.50.040 (1) and (12).
Statute Being Implemented: Chapter 80.50 RCW.
Summary: The main focus is to update adoption by reference, or adopt new sections of chapters 173-400, 173-401, 173-406 and 173-460 WAC promulgated by the Department of Ecology to comply with the state and federal clean air acts and the requirements of the state implementation plan (SIP). Changes to the language regarding the application form, source registration and penalties for permits issued under chapter 463-39 WAC are required for clarity.
Reasons Supporting Proposal: Consistency with federal requirements is necessary for EFSEC to retain and exercise its delegated authority from the United States Environmental Protection Agency to implement federal Clean Air Act programs and regulations for facilities under EFSEC jurisdiction. Updating the rules will also make the control of air emissions consistent with current state requirements.
Name of Agency Personnel Responsible for Drafting: Irina Makarow, Olympia, (360) 956-2047; Implementation: Allen Fiksdal, Olympia, (360) 956-2152; and Enforcement: Mike Mills, Olympia, (360) 956-2151.
Name of Proponent: Energy Facility Site Evaluation Council, governmental.
Rule is necessary because of federal law, Federal Clean Air Act.
Explanation of Rule, its Purpose, and Anticipated Effects: Chapter 463-39 WAC, General and operating permit regulations for air pollution sources, implements the standards and procedural requirements for review and issuance of air emission permits for facilities under EFSEC jurisdiction. Because EFSEC is delegated by the United States Environmental Protection Agency to issue certain federal permits, and because EFSEC is authorized by state statute to issue state permits for air pollution sources regulated under chapter 80.50 RCW, chapter 463-39 WAC adopts by reference, and implements both state and federal laws and rules regarding air emissions control.
Since the last amendments to chapter 463-39 WAC, both state and federal rules for air pollution sources have been updated and/or revised. WAC 463-39-005, which adopts state regulations for air pollution sources, was last amended in 1995; WAC 463-39-115, which adopts federal new source performance standards, was last amended in 1994. Both federal laws, and regulations, and consequently state regulations, have been modified since that time. Applicable sections of chapters 173-400, 173-401, 173-406 and 173-460 WAC are adopted by reference in EFSEC WAC 463-39-005, and have all been amended by ecology since 1995. The purpose of the amendments to chapter 463-39 WAC is to maintain a permit program for air pollution sources that is consistent with the current state and federal requirements.
Other changes proposed in this expedited rule making are required to clarify existing language.
Proposal Changes the Following Existing Rules: This action amends the following sections of chapter 463-39 WAC:
WAC 463-39-005, update adoption by reference of applicable sections of ecology chapters 173-400, 173-401, 173-406 and 173-460 WAC, as in effect on July 1, 2003.
WAC 463-39-030, add the definition of "permitting agency" for consistency with ecology chapter 173-400 WAC in effect on July 1, 2003.
WAC 463-39-090, clarify that standard ecology forms may be used for applications for air operating permits.
WAC 463-39-100, clarify that sources subject to chapter 173-401 WAC (operating permit regulation) are not required to comply with the registration requirements of WAC 463-39-100.
WAC 463-39-105, clarify that fees and costs are assessed by the council.
WAC 463-39-115, update adoption by reference of federal new source performance standards, as in effect on July 1, 2003.
WAC 463-39-135, clarify that persons in violation of chapter 463-39 WAC are subject to the provisions of both chapter 80.50 RCW and the state Clean Air Act, RCW 70.94.422.
WAC 463-39-170, clarification for gender neutrality of council members.
WAC 463-39-230, editorial correction.
No small business economic impact statement has been prepared under chapter 19.85 RCW. The proposed changes to chapter 463-39 WAC are exempt from the requirement to prepare a small business economic impact statement because they are adopting federal requirements without material change, adopting rules of another Washington state agency without material change, and clarifying language of a rule without changing its effect. See RCW 19.85.025(3) and 34.05.310 (4)(c) and (d).
RCW 34.05.328 does not apply to this rule adoption. The proposed changes to chapter 463-39 WAC are exempt from the requirements of RCW 34.05.328 because they are adopting federal requirements without material change, adopting rules of another Washington state agency without material change, and clarifying language of a rule without changing its effect. See RCW 34.05.328 (5)(b)(iii) and (iv).
Hearing Location: 925 Plum Street S.E., Building 4, Conference Room 308, Olympia, WA 98504-3172, on July 6, 2004, at 1:30 p.m.
Assistance for Persons with Disabilities: Contact Mariah Laamb by June 30, 2004, TDD (360) 586-4224 or (360) 956-2121.
Submit Written Comments to: Allen J. Fiksdal, EFSEC, P.O. Box 43172, Olympia, WA 98504-3172, fax (360) 956-2158, by July 6, 2004.
Date of Intended Adoption: August 3, 2004.
May 18, 2004
Allen J. Fiksdal
EFSEC Manager
OTS-7168.2
AMENDATORY SECTION(Amending WSR 95-17-088, filed 8/21/95,
effective 9/21/95)
WAC 463-39-005
Adoption by reference.
(1) The energy
facility site evaluation council adopts the following
((sections or subsections)) provisions of chapter 173-400 WAC,
in effect on July 1, 2003, by reference.
| WAC 173-400-030: | Definitions. |
| WAC 173-400-035: | Portable and temporary sources. |
| WAC 173-400-040: | General standards for maximum emissions. |
| WAC 173-400-050: | Emission standards for combustion and incineration units. |
| WAC 173-400-060: | Emission standards for general process units. |
| WAC 173-400-075: | Emission standards for sources emitting hazardous air pollutants. |
| WAC 173-400-081: | Startup and shutdown. |
| WAC 173-400-091: | Voluntary limits on emissions. |
| WAC 173-400-105: | Records, monitoring, and reporting. |
| WAC 173-400-107: | Excess emissions. |
| WAC 173-400-110: | New source review (NSR). |
| WAC 173-400-112: | Requirements for new sources in nonattainment areas. |
| WAC 173-400-113: | Requirements for new sources in attainment or unclassifiable areas. |
| WAC 173-400-114: | Requirements for replacement or substantial alteration of emission control technology at an existing stationary source. |
| WAC 173-400-117: | Special protection requirements for federal Class I areas. |
| WAC 173-400-120: | Bubble rules. |
| WAC 173-400-131: | Issuance of emission reduction credits. |
| WAC 173-400-136: | Use of emission reduction credits. |
| WAC 173-400-141: | Prevention of significant deterioration (PSD). |
| WAC 173-400-151: | Retrofit requirements for visibility protection. |
| WAC 173-400-161: | Compliance schedules. |
| WAC 173-400-171: | Public involvement. |
| WAC 173-400-180: | Variance. |
| WAC 173-400-190: | Requirements for nonattainment areas. |
| WAC 173-400-200: | Creditable stack height and dispersion techniques. |
| WAC 173-400-205: | Adjustment for atmospheric conditions. |
| WAC 173-401-100: | Program overview. |
| WAC 173-401-200: | Definitions. |
| WAC 173-401-300: | Applicability. |
| WAC 173-401-500: | Permit applications. |
| WAC 173-401-510: | Permit application form. |
| WAC 173-401-520: | Certification. |
| WAC 173-401-530: | Insignificant emission units. |
| WAC 173-401-531: | Thresholds for hazardous air pollutants. |
| WAC 173-401-532: | Categorically exempt insignificant emission units. |
| WAC 173-401-533: | Units and activities defined as insignificant on the basis of size or production rate. |
| WAC 173-401-600: | Permit content. |
| WAC 173-401-605: | Emission standards and limitations. |
| WAC 173-401-610: | Permit duration. |
| WAC 173-401-615: | Monitoring and related recordkeeping and reporting requirements. |
| WAC 173-401-620: | Standard terms and conditions. Except (2)(i). |
| WAC 173-401-625: | Federally enforceable requirements. |
| WAC 173-401-630: | Compliance requirements. |
| WAC 173-401-635: | Temporary sources. |
| WAC 173-401-640: | Permit shield. |
| WAC 173-401-645: | Emergency provision. |
| WAC 173-401-650: | Operational flexibility. |
| WAC 173-401-700: | Action on application. |
| WAC 173-401-705: | Requirement for a permit. |
| WAC 173-401-710: | Permit renewal, revocation and expiration. |
| WAC 173-401-720: | Administrative permit amendments. |
| WAC 173-401-722: | Changes not requiring permit revisions. |
| WAC 173-401-725: | Permit modifications. |
| WAC 173-401-730: | Reopening for cause. |
| WAC 173-401-750: | General permits. |
| WAC 173-401-800: | Public involvement. |
| WAC 173-401-810: | EPA Review. |
| WAC 173-401-820: | Review by affected states. |
| Part I - GENERAL PROVISIONS |
|
| WAC 173-406-100: | Acid rain program general provisions. |
| WAC 173-406-101: | Definitions. |
| WAC 173-406-102: | Measurements, abbreviations, and acronyms. |
| WAC 173-406-103: | Applicability. |
| WAC 173-406-104: | New units exemption. |
| WAC 173-406-105: | Retired units exemption. |
| WAC 173-406-106: | Standard requirements. |
| Part II - DESIGNATED REPRESENTATIVE |
|
| WAC 173-406-200: | Designated representative. |
| WAC 173-406-201: | Submissions. |
| WAC 173-406-202: | Objections. |
| Part III - APPLICATIONS |
|
| WAC 173-406-300: | Acid rain permit applications. |
| WAC 173-406-301: | Requirement to apply. |
| WAC 173-406-302: | Information requirements for acid rain permit applications. |
| WAC 173-406-303: | Permit application shield and
binding effect of permit
application. |
| Part IV - COMPLIANCE PLAN |
|
| WAC 173-406-400: | Acid rain compliance plan and compliance options. |
| WAC 173-406-401: | General. |
| WAC 173-406-402: | Repowering extensions. |
| Part V - PERMIT CONTENTS |
|
| WAC 173-406-500: | Acid rain permit. |
| WAC 173-406-501: | Contents. |
| WAC 173-406-502: | Permit shield. |
| Part VI - PERMIT ISSUANCE |
|
| WAC 173-406-600: | Acid rain permit issuance procedures. |
| WAC 173-406-601: | General. |
| WAC 173-406-602: | Completeness. |
| WAC 173-406-603: | Statement of basis. |
| WAC 173-406-604: | Issuance of acid rain permits. |
| WAC 173-406-605: | Acid rain permit appeal
procedures. |
| Part VII - PERMIT REVISIONS |
|
| WAC 173-406-700: | Permit revisions. |
| WAC 173-406-701: | General. |
| WAC 173-406-702: | Permit modifications. |
| WAC 173-406-703: | Fast-track modifications. |
| WAC 173-406-704: | Administrative permit amendment. |
| WAC 173-406-705: | Automatic permit amendment. |
| WAC 173-406-706: | Permit reopenings. |
| Part VIII - COMPLIANCE CERTIFICATION |
|
| WAC 173-406-800: | Compliance certification. |
| WAC 173-406-801: | Annual compliance certification report. |
| WAC 173-406-802: | Units with repowering extension plans. |
| Part IX - NITROGEN OXIDES |
|
| WAC 173-406-900: | Nitrogen oxides emission reduction program. |
| Part X - SULFUR DIOXIDE OPT-IN |
|
| WAC 173-406-950: | Sulfur dioxide opt-ins. |
| WAC 173-460-010: | Purpose. |
| WAC 173-460-020: | Definitions. |
| WAC 173-460-030: | Requirements, applicability and exemptions. |
| WAC 173-460-040: | New source review. |
| WAC 173-460-050: | Requirement to quantify emissions. |
| WAC 173-460-060: | Control technology requirements. |
| WAC 173-460-070: | Ambient impact requirement. |
| WAC 173-460-080: | Demonstrating ambient impact compliance. |
| WAC 173-460-090: | Second tier analysis. |
| WAC 173-460-100: | Request for risk management decision. |
| WAC 173-460-110: | Acceptable source impact levels. |
| WAC 173-460-120: | Scientific review and amendment of acceptable source impact levels and lists. |
| WAC 173-460-130: | Fees. |
| WAC 173-460-140: | Remedies. |
| WAC 173-460-150: | Class A toxic air pollutants: Known, probable and potential human carcinogens and acceptable source impact levels. |
| WAC 173-460-160: | Class B toxic air pollutants and acceptable source impact levels. |
[Statutory Authority: RCW 80.50.040(1). 95-17-088, § 463-39-005, filed 8/21/95, effective 9/21/95; 94-16-031, § 463-39-005, filed 7/26/94, effective 8/26/94. Statutory Authority: RCW 80.50.040(1) and chapter 70.94 RCW. 93-23-035, § 463-39-005, filed 11/10/93, effective 12/11/93. Statutory Authority: RCW 80.50.040(1). 92-09-013, § 463-39-005, filed 4/2/92, effective 5/3/92.]
(2) In addition to the definitions contained in WAC 173-400-030, 173-401-200, 173-406-101, "ecology," ((and))
"authority," and "permitting agency" shall be synonymous with
the energy facility site evaluation council unless a different
meaning is plainly required by context.
[Statutory Authority: RCW 80.50.040(1). 95-17-088, § 463-39-030, filed 8/21/95, effective 9/21/95. Statutory Authority: RCW 80.50.040(1) and chapter 70.94 RCW. 93-23-035, § 463-39-030, filed 11/10/93, effective 12/11/93. Statutory Authority: RCW 80.50.040(1). 92-09-013, § 463-39-030, filed 4/2/92, effective 5/3/92; 79-09-006 (Order 79-1), § 463-39-030, filed 8/6/79.]
(2) Applications for permits under chapter 173-406 WAC shall be on form(s) developed by the department of ecology.
[Statutory Authority: RCW 80.50.040(1). 95-17-088, § 463-39-090, filed 8/21/95, effective 9/21/95; 94-16-031, § 463-39-090, filed 7/26/94, effective 8/26/94.]
Registration shall be on forms which have been adopted for use by the department of ecology within the time specified thereon.
A report of closure shall be filed with the council within ninety days after operations producing emissions permanently ceased at any source within the council's jurisdiction.
(2) The council shall ensure that the following, as it pertains to sources covered under this rule, is passed on to ecology in a timely manner for inclusion in its permit register:
(a) Public meetings or hearings on draft operating permits;
(b) Receipt of complete applications;
(c) Permit appeals;
(d) Issuance or denial of final permit, permit modifications, or renewals;
(e) Authorization for a source to operate without an operating permit by limiting its potential to emit to levels below those that would require the source to obtain an operating permit;
(f) Periodic summaries of enforcement order and changes made without revising the permit pursuant to WAC 173-401-722.
[Statutory Authority: RCW 80.50.040(1) and chapter 70.94 RCW. 93-23-035, § 463-39-100, filed 11/10/93, effective 12/11/93. Statutory Authority: RCW 80.50.040(1). 79-09-006 (Order 79-1), § 463-39-100, filed 8/6/79.]
(2) All fees recovered under the air operating permit program shall be deposited in the state air operating permit account.
(3) The council shall determine and assess fees for air operating permits based on the following:
(a) Sources which are located in counties having a local air authority shall be assessed fees based upon the fee structure set by that local air authority.
(b) Sources which are located in counties not having a
local air authority, or are cogeneration facilities which
provide steam and/or electricity to primary industries such as
((the)) aluminum or pulp and paper mills, shall be assessed
fees based upon the fee structure set by the department of
ecology.
(c) Radioactive emissions sources shall be assessed fees consistent with the department of health fee structure.
(d) Department of ecology air operating permit program administration costs shall be charged to all sources under council jurisdiction.
(e) The council shall recover its actual costs for program administration as provided in WAC 463-58-050.
[Statutory Authority: RCW 80.50.040(1). 95-17-088, § 463-39-105, filed 8/21/95, effective 9/21/95.]
(1) Title 40, Code of Federal Regulations, Part 60
(standards of performance for new stationary sources), ((are))
in effect on July 1, 2003, as applicable to new stationary
sources subject to chapter 80.50.RCW is by this reference
adopted and incorporated herein with the exception ((of
sections 60.5 (determination of construction or modification)
and 60.6 (review of plans))) listed in subsection (2) of this
section. For the purpose of state administration of the
federal regulations adopted by reference hereby, the term
"administrator" as used therein shall refer to the council.
The following list is provided for informational purposes
only:
| Subpart A | General Provisions, except CFR 60.5 and 60.6 |
| Subpart D | Fossil fuel fired steam generators for which construction commenced after August 17, 1971, and prior to September 19, 1978, which have a heat input greater than 73 megawatts but not greater than 350 megawatts |
| Subpart Da | Electric utility steam generating units for which construction commenced after September 18, 1978, which have greater than 73 megawatts but not greater than 350 megawatts |
| Subpart J | Petroleum refineries which produce less than 25,000 barrels per day of refined products |
| Subpart K | Storage vessels for petroleum liquid constructed after June 11, 1973, and prior to May 19, 1978, which have a capacity greater than 40,000 gallons |
| Subpart Ka | Storage vessels for petroleum liquids constructed after May 18, 1978, which have a capacity greater than 40,000 gallons |
| Subpart Kb | Volatile organic liquid storage vessels (including petroleum liquid storage vessels) constructed, reconstructed, or modified after July 23, 1984 |
| Subpart Y | Standards for Performance for Coal Preparation Plants |
| Subpart GG | Stationary gas turbines |
| Subpart XX | Bulk gasoline terminals |
| Subpart GGG | Petroleum refineries – compressors and fugitive emission sources |
| Subpart KKK | Equipment leaks of VOC from onshore natural gas processing plants |
| Subpart LLL | Onshore natural gas processing; SO2 emissions |
| Subpart NNN | VOC emissions from SOCMI distillation operations |
| Subpart QQQ | VOC emissions from petroleum refinery wastewater emissions |
| Appendix A | Test Methods |
| Appendix B | Performance Specifications |
| Appendix C | Determination of Emission Rate Change |
| Appendix D | Required Emission Inventory Information |
| Appendix F | Quality Assurance Procedures |
(2) Exceptions to adopting 40 CFR Part 60 by reference.
Sections 60.5 and 60.6 ((of Title 40, Code of Federal
Regulations,)) are not incorporated herein because they
provide for preconstruction review of new stationary sources
only on request. By virtue of WAC 173-400-110, such review
under the state program is mandatory and an order of approval
is required before the construction, installation or
establishment of a new stationary source may commence.
[Statutory Authority: RCW 80.50.040(1). 94-16-031, § 463-39-115, filed 7/26/94, effective 8/26/94; 92-09-013, § 463-39-115, filed 4/2/92, effective 5/3/92; 82-14-051 (Order 82-3), § 463-39-115, filed 6/30/82; 79-09-006 (Order 79-1), § 463-39-115, filed 8/6/79.]
[Statutory Authority: RCW 80.50.040(1). 79-09-006 (Order 79-1), § 463-39-135, filed 8/6/79.]
(1) For the purposes of this section, the term "member" includes any individual who has or shares authority to approve permit applications or portions thereof, either in the first instance or on appeal.
(2) For the purpose of this section, the term "permit holders or applicants for a permit" shall not include any department or agency of a state government.
(3) For the purposes of this section, the term "significant portion of his income" shall mean ten percent of gross personal income for a calendar year, except that it shall mean fifty percent of gross personal income for a calendar year if the recipient is over sixty years of age and is receiving such portion pursuant to retirement pension or similar arrangement.
(4) For the purposes of this section, the term "income" includes retirement benefits, consultant fees and stock dividends.
(5) For the purposes of this section, income is not received "directly or indirectly from permit holders or applicants for a permit" if it is derived from mutual fund payments or from other diversified investments over which the recipient does not know the identity of the primary source of income.
[Statutory Authority: RCW 80.50.040(1). 79-09-006 (Order 79-1), § 463-39-170, filed 8/6/79.]
(1) Enforcement actions--Notice of violation. At least
thirty days prior to the commencement of any formal
enforcement action under RCW 70.94.430 and 70.94.431 (1)
through (7), the council shall cause written notice to be
served upon the alleged violator or violators. The notice
shall specify the provision of this chapter or rule or
regulation alleged to be violated and the facts alleged to
constitute a violation thereof, and may include an order that
necessary corrective action be taken within a reasonable time.
In lieu of an order, the council may require that the alleged
violator or violators appear before it for the purpose of
providing information to the council ((information))
pertaining to the violation or the charges complained of. Every notice of violation shall offer the alleged violator an
opportunity to meet with the council prior to the commencement
of enforcement action.
(2) Civil penalty.
(a) All penalties assessed as the result of air emission violations shall be consistent with RCW 70.94.332, 70.94.430, 70.94.431 (1) through (7), and 70.94.435. Any person who violates any of the provisions of chapter 70.94 RCW may incur a civil penalty in an amount as set forth in RCW 70.94.431. Each such violation shall be separate and distinct and, for a continuing violation, each day's continuance shall be a separate and distinct violation.
Any person who fails to take action as specified by an order issued pursuant to this chapter shall be liable for a civil penalty as set forth by RCW 70.94.431 for each day of continued noncompliance.
(b) Penalties incurred but not paid shall accrue interest, beginning on the ninety-first day following the date that the penalty becomes due and payable, at the highest rate allowed by RCW 19.52.020 on the date that the penalty becomes due and payable. If violations or penalties are appealed, interest shall not begin to accrue until the thirty-first day following final resolution of the appeal.
The maximum penalty amount established in RCW 70.94.431 may be increased annually to account for inflation as determined by the state office of economic and revenue forecast council.
(c) Each act of commission or omission which procures, aids, or abets in the violation shall be considered a violation under the provisions of this section and subject to the same penalty. The penalties provided in this section shall be imposed pursuant to RCW 70.94.422.
(d) All penalties recovered under this section by the council shall be paid into the state treasury and credited to the air pollution control account established in RCW 70.94.015.
(e) In addition to other penalties provided by this chapter, persons knowingly under-reporting emission or other information used to set fees, or persons required to pay emission or permit fees who are more than ninety days late with such payments may be subject to a penalty equal to three times the amount of the original fee owed.
(3) Assurance of discontinuance. The chair, or his/her authorized representative, may accept an assurance of discontinuance of any act or practice deemed in violation of this chapter. Any such assurance shall specify a time limit during which discontinuance is to be accomplished. Failure to perform the terms of any such assurance shall constitute prima facie proof of a violation of this chapter which make the alleged act or practice unlawful for the purpose of securing an injunction or other relief from the superior court.
(4) Restraining orders, injunctions. Whenever any person has engaged in, or is about to engage in, any acts or practices which constitute or will constitute a violation of any provision of this chapter, the council, after notice to such person and an opportunity to comply, may petition the superior court of the county wherein the violation is alleged to be occurring or to have occurred for a restraining order or a temporary or permanent injunction or another appropriate order.
(5) Emergency episodes. The council may issue such orders as authorized by chapter 80.50 RCW, whenever an air pollution episode forecast is declared.
(6) Compliance orders. The council may issue a compliance order in conjunction with a notice of violation. The order shall require the recipient of the notice of violation either to take necessary corrective action or to submit a plan for corrective action and a date when such action will be initiated.
[Statutory Authority: RCW 80.50.040(1). 94-16-031, § 463-39-230, filed 7/26/94, effective 8/26/94.]