Original Notice.

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

     Title of Rule and Other Identifying Information: Amending Regulation I, Sections 3.11, 3.25, 12.03, and 13.07 (recodified as 13.03); repealing Regulation I, Sections 11.01, 11.02, 13.02, 13.03, 13.04, and 13.05; and adopting Regulation I, Section 13.02.

     Hearing Location(s): Puget Sound Clean Air Agency, 110 Union Street, Suite 500, Seattle, WA 98101, September 23, 2004, at 9:15 a.m.

     Date of Intended Adoption: September 23, 2004.

     Submit Written Comments to: Lynn Hughes, Puget Sound Clean Air Agency, 110 Union Street, #500, Seattle, WA 98101, e-mail lynnh@pscleanair.org, fax (206) 343-7522, by September 22, 2004.

     Assistance for Persons with Disabilities: Contact Agency Receptionist, (206) 689-4010, by September 16, 2004, TTY (800) 833-6388 or (800) 833-6385 (Braille).

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Article 3: To adjust the maximum Civil Penalty amount for inflation and update the Federal Regulation Reference Date; Article 11: To repeal Ambient Air Quality Standards; Article 12: To delete "control officer" and remove reference language in the Continuous Emission Monitoring Systems rules; and Article 13: To adopt by reference chapter 173-433 WAC, Solid Fuel Burning Devices.

     Reasons Supporting Proposal: Article 3: Without the adjustment for inflation, the maximum civil penalty amount would effectively decrease each year; and the federal regulation reference date needs to be kept current; Article 11: These standards were included only for informational purposes and are readily available elsewhere including EPA, DOE, and the agency website; Article 12: These changes comply with EPA regulatory requirements; and Article 13: This change minimizes overlapping rules at the state and local levels.

     Statutory Authority for Adoption: Chapter 70.94 RCW.

     Statute Being Implemented: RCW 70.94.141.

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

     Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: The state implementation plan will be updated to reflect the amendments to Articles 3, 12, and 13.

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

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

     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.

     A cost-benefit analysis is not required under RCW 34.05.328. RCW 34.05.328 does not apply to local air agencies, per RCW 70.94.141.

August 13, 2004

James Nolan

Director - Compliance

REGULATION I SECTION 3.11 CIVIL PENALTIES

     (a) Any person who violates any of the provisions of ((C))chapter 70.94 RCW or any of the rules or regulations in force pursuant thereto, may incur a civil penalty in an amount not to exceed (($14,243.00)) $14,300.00 per day for each violation.

     (b) Any person who fails to take action as specified by an order issued pursuant to ((C))chapter 70.94 RCW or Regulations I, II, and III of the Puget Sound Clean Air Agency shall be liable for a civil penalty of not more than (($14,243.00)) $14,300.00 for each day of continued noncompliance.

     (c) Within ((15)) 30 days after receipt of a Notice and Order of Civil Penalty, the person incurring the penalty may apply in writing to the Control Officer for the remission or mitigation of the penalty. Any such request must contain the following:

     (1) The name, mailing address, telephone number, and telefacsimile number (if available) of the ((appealing)) party requesting mitigation;

     (2) A copy of the Notice and Order of Civil Penalty ((appealed from)) involved;

     (3) A short and plain statement showing the grounds upon which the ((appealing)) party requesting mitigation considers such order to be unjust or unlawful;

     (4) A clear and concise statement of facts upon which the ((appealing)) party requesting mitigation relies to sustain his or her grounds for ((appeal)) mitigation;

     (5) The relief sought, including the specific nature and extent; and

     (6) A statement that the ((appealing)) party requesting mitigation has read the ((notice of appeal)) mitigation request and believes the contents to be true, followed by the party's signature. Upon receipt of the application, the Control Officer shall remit or mitigate the penalty only upon a demonstration by the requestor of extraordinary circumstances such as the presence of information or factors not considered in setting the original penalty.

     (d) Any civil penalty may also be appealed to the Pollution Control Hearings Board pursuant to ((C))chapter 43.21B RCW and ((C))chapter 371-08 WAC if the appeal is filed with the Hearings Board and served on the Agency within 30 days after receipt by the person penalized of the notice imposing the penalty or 30 days after receipt of the notice of disposition on the application for relief from penalty.

     (e) A civil penalty shall become due and payable on the later of:

     (1) 30 days after receipt of the notice imposing the penalty;

     (2) 30 days after receipt of the notice of disposition on application for relief from penalty, if such application is made; or

     (3) 30 days after receipt of the notice of decision of the Hearings Board if the penalty is appealed.

     (f) If the amount of the civil penalty is not paid to the Agency within 30 days after it becomes due and payable, the Agency may bring action to recover the penalty in King County Superior Court or in the superior court of any county in which the violator does business. In these actions, the procedures and rules of evidence shall be the same as in an ordinary civil action.

     (g) Civil penalties incurred but not paid shall accrue interest beginning on the 91st 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 31st day following final resolution of the appeal.

     (h) To secure the penalty incurred under this section, the Agency shall have a lien on any vessel used or operated in violation of Regulations I, II, and III which shall be enforced as provided in RCW 60.36.050.

AMENDATORY SECTION

REGULATION I SECTION 3.25 FEDERAL REGULATION REFERENCE DATE

     Whenever federal regulations are referenced in Regulation I, II, or III, the effective date shall be July 1, ((2003)) 2004.

REPEALER

REGULATION I SECTION 11.01 AMBIENT AIR QUALITY STANDARDS

    


REPEALER

REGULATION I SECTION 11.02 AMBIENT AIR MONITORING

AMENDATORY SECTION

REGULATION I SECTION 12.03 CONTINUOUS EMISSION MONITORING SYSTEMS

     (a) Continuous Monitoring. It shall be unlawful for any person to cause or allow the operation of any equipment required to have a continuous emission monitoring system unless the emissions are continuously monitored in accordance with the requirements of this section.

     (b) Data Recovery. The owner or operator shall recover valid hourly monitoring data for at least 95% of the hours that the equipment (required to be monitored) is operated during each calendar month except for((:))

     (((1) P))periods of monitoring system downtime, provided that the owner or operator demonstrates ((to the Control Officer)) that the downtime was not a result of inadequate design, operation, or maintenance, or any other reasonably preventable condition, and any necessary repairs to the monitoring system are conducted in a timely manner; and

     (((2) Periods authorized under Section 3.03 or Article 6 of this regulation.))

     (c) Quality Assurance. The owner or operator shall install a continuous emission monitoring system that meets the performance specification in 40 CFR Part 60, Appendix B in effect at the time of its installation, and shall operate this monitoring system in accordance with the quality assurance procedures in Appendix F of 40 CFR Part 60 in effect ((July 1, 1997)) as of the federal regulation reference date listed in Section 3.25 of this regulation herein incorporated by reference, and the U.S. Environmental Protection Agency's "Recommended Quality Assurance Procedures for Opacity Continuous Monitoring Systems" (EPA 340/1-86-010).

     (d) Data Recording. Monitoring data commencing on the clock hour and containing at least 45 minutes of monitoring data shall be reduced to 1-hour averages. Monitoring data for opacity shall also be reduced to 6-minute averages. All monitoring data shall be included in these averages except for data collected during calibration drift tests and cylinder gas audits, and for data collected subsequent to a failed quality assurance test or audit.

     (e) Data Retention. The owner or operator shall retain all monitoring data averages for at least 2 years, including copies of all reports submitted to the Agency and records of all repairs, adjustments, and maintenance performed on the monitoring system. All such data collected after October 1, 1998 shall be retained for at least 5 years.

     (f) Data Reporting. The owner or operator shall submit a monthly report to the Agency within 30 days after the end of the month in which the data were recorded. This report shall include:

     (1) The date, time period, magnitude (in the units of the standard) and cause of each emission that exceeded an applicable emission standard;

     (2) The date and time of all actions taken to correct the problem, including any actions taken to minimize the emissions during the exceedance and any actions taken to prevent its recurrence;

     (3) The number of hours that the equipment (required to be monitored) operated each month and the number of valid hours of monitoring data that the monitoring system recovered each month;

     (4) The date, time period, and cause of each failure to meet the data recovery requirements of Section 12.03(b) and any actions taken to ensure adequate collection of such data;

     (5) The date, time period, and cause of each failure to recover valid hourly monitoring data for at least 90% of the hours that the equipment (required to be monitored) was operated each day;

     (6) The results of all cylinder gas audits conducted during the month; and

     (7) A certification of truth, accuracy, and completeness signed by an authorized representative of the owner or operator.

     (g) Relative Accuracy Tests. All relative accuracy tests shall be subject to the provisions of Section 3.07 of this regulation.

     (h) Exemptions. The data recording and reporting requirements of Sections 12.03(d) and 12.03(f) shall not apply to continuous VOC monitoring systems required under Section 2.05 of Regulation II. Further, relative accuracy tests shall not be required of these monitoring systems and may be waived for any other monitoring system not otherwise subject to 40 CFR Part 60, Appendix F, provided that the owner or operator demonstrates to the Control Officer that the emissions are consistently below 10% of the applicable emission standard.

REPEALER

REGULATION I SECTION 13.02 DEFINITIONS

REPEALER

REGULATION I SECTION 13.03 OPACITY STANDARDS

REPEALER

REGULATION I SECTION 13.04 PROHIBITED FUEL TYPES

REPEALER

REGULATION I SECTION 13.05 CURTAILMENT

NEW SECTION

REGULATION I SECTION 13.02 GENERAL CONDITIONS FOR SOLID FUEL BURNING DEVICES

     In addition to the provisions of this regulation, the Agency adopts by reference and enforces the following provisions for solid fuel burning devices established by the Washington State Department of Ecology:

WAC 173-433-030	Definitions. (effective 4/20/91)
WAC 173-433-110	Opacity standards. (effective 3/6/93)
WAC 173-433-120	Prohibited fuel types. (effective 4/20/91)
WAC 173-433-130	General emission standards. (effective 4/20/91)
WAC 173-433-140 (1)(b), (2), (3), and (4)	Impaired air quality criteria. (effective 4/20/91)
First Stage of Impaired Air Quality has the meaning contained in RCW 70.94.473(b)
WAC 173-433-150	Curtailment. (effective 4/20/91)

AMENDATORY SECTION

REGULATION I SECTION ((13.07)) 13.03 CONTINGENCY PLAN

     The following provision is established for the sole purpose of a contingency measure to meet the requirements of Section 172 (c)(9) of the federal Clean Air Act. If the U.S. Environmental Protection Agency makes written findings that: (1) an area has failed to attain or maintain the national ambient air quality standard, and (2) in consultation with the Washington Department of Ecology and the Agency, finds that the emissions from solid fuel burning devices are a contributing factor to such failure to attain or maintain the standard, the use of woodstoves not meeting the standards set forth in RCW 70.94.457 shall be prohibited within the area determined by the Agency to have contributed to the violation. This provision shall take effect one year after such a determination.

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