Supplemental Notice to WSR 09-21-087.

     Exempt from preproposal statement of inquiry under RCW 34.05.310(4).

     Title of Rule and Other Identifying Information: Revocation of old Regulation I, Article VI, Section 6.04 Odors and Nuisances and addition of new section entitled Section 6.04 Emission of Air Contaminant Detrimental to Person or Property.

     The language in Attachment "C" has been slightly revised from the last submittal (WSR 09-21-087). Although Spokane Regional Clean Air Agency (SRCAA) believes these revisions are nonsubstantive, nonetheless we are treating them as such to ensure that the public is provided ample opportunity to comment. Therefore, SRCAA is resubmitting the regulation with another public comment period and a new hearing.

     Summary of Proposed Revisions:

•     Revoke present regulation;

•     Add a reference to Regulation I, Article I, Section 1.04 for the applicable definitions;

•     Add a notification that SRCAA implements and enforces WAC 173-400-040 as well as Regulation I, Article VI, Section 6.04. The more stringent of the two regulations supersedes the lesser, [Note: This sentence has been removed from the previous CR-102 (WSR 09-21-087) proposal.];

•     Adopt by reference RCW 70.94-640 [70.94.640] (Odors or fugitive dust caused by agricultural activities consistent with good agricultural practices exempt from chapter.) CR-102 (WSR 09-21-087) proposal;

•     Incorporate the requirements from Puget Sound Clean Air Agency's (PSCAA) Section 9.11; and

•     Establishes odor standards that are clear to the regulated community and the public, into SRCAA's regulation.

     •     Agency may take enforcement action if it documents that all of the following occur:

          ▪     Control Officer or a duly authorized representative detects an odor level greater than or equal to 2 based on the following scale;

               •     Level 0 - no odor detected,

               •     Level 1 - odor barely detected,

               •     Level 2 - odor is distinct and definite, any unpleasant characteristics recognizable,

               •     Level 3 - odor is objectionable enough or strong enough to cause attempts at avoidance, and

               •     Level 4 - odor is so strong that a person does not want to remain present.

          ▪     A person making a complaint signs an affidavit stating that they have experienced air contaminant emissions in sufficient quantities and of such characteristics and duration so as to unreasonably interfere with their enjoyment of life and property; and

          ▪     The source of the odor;

          ▪     A description of what the affidavit should contain was added. (i.e. the affidavit should describe or identify, to the extent possible, the frequency, intensity, duration, offensiveness, and location of the odor experienced by the complainant.)

•     A new subsection was added stating: "With respect to odor, the Agency will determine whether or not a violation of subsection C has occurred based on its review of the information documented under subsection D, as well as any other relevant information obtained during the investigation."

     This additional language has been added to clarify that the Agency will not just be issuing penalties blindly based on affidavits, but that the Agency will be reviewing the statements and the other documentation to make its determination as to whether a violation occurred.

•     The rule also establishes that if a person/facility proves to the Agency's satisfaction that it has employed controls and operating practices to the greatest degree practicable, that the Agency may decline to pursue formal enforcement action.

•     In the case where the above occurs, the Agency will document criteria used in making the decision and will be made available to any person making a public records request to the Agency for said documentation, including, but not limited to complaining parties. This does not apply to information deemed confidential in accordance with RCW 70.94.205.

     Hearing Location(s): Spokane Regional Clean Air Agency, 3104 East Augusta Avenue, Spokane, WA 99207, on March 4, 2010, at 9:00 a.m.

     Date of Intended Adoption: March 4, 2010.

     Submit Written Comments to: Charles E. Studer, 3104 East Augusta Avenue, Spokane, WA 99207, e-mail cestuder@scapca.org, fax (509) 477-4727 ext. 107, by January 22, 2010.

     Assistance for Persons with Disabilities: Contact Charles E. Studer by February 23, 2010, TTY (800) 833-6384.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Although SRCAA's legal authority to take enforcement action for odors which unreasonably interfere with another property owner's use and enjoyment is broad as provided by state law and SRCAA regulation, SRCAA has not typically taken enforcement action for violation of odor nuisance regulations because SRCAA inspectors often determine that unreasonable off-site odors exist as reported by the complainant(s) and that the source of the odor is unquestionably the identified facility; however, during the investigation, it is often extremely difficult to identify specific operations or maintenance requirements which were not complied with which resulted in the odor.

     During the past four and one-half years, SRCAA has received nearly 800 odor complaints and has issued only one odor Notice of Violation (Notice of Violation).

     These revisions will revoke our present odor and nuisance rule and add a new way of enforcement consistent with the practices of PSCAA's Rule 9.11, which has been challenged to the Pollution Control Hearings Board (PCHB). Each time PSCAA's enforcement action has been upheld.

     Reasons Supporting Proposal: SRCAA expects that these changes to the rule will establish clear enforceable odor standards that can be understood by both the public and the regulated community and will strengthen the enforceability of nuisance occurrences.

     Statutory Authority for Adoption: RCW 70.94.141 and 70.94.380.

     Statute Being Implemented: Chapter 70.94 RCW and 42 U.S.C. 7401 et seq.

     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: SRCAA's proposed regulation clearly communicates the odor standards to the regulated community, and is relatively straightforward for inspectors to apply in appropriate cases. SRCAA's proposed regulation also provides an enforcement standard which is consistent with the standard established in the Washington Clean Air Act for nuisance odors. The benefit of enforcing a regulation that is nearly identical to PSCAA's nuisance regulation Section 9.11 is that odor violations issued by PSCAA which have been appealed to the Washington PCHB have been affirmed by the PCHB. Although the current and proposed regulation does not establish a "zero" odor standard, which people sometimes expect, one of the most significant benefits of a revised odor nuisance regulation may be that people impacted by strong and unreasonable odors are more likely see some level of relief because of the more objective nature of the revised regulation.

     Name of Proponent: Spokane Regional Clean Air Agency, governmental.

     Name of Agency Personnel Responsible for Drafting: Charles E. Studer, 3401 East Augusta Avenue, Spokane, WA 99207, (509) 477-4727 ext. 107; Implementation: William O. Dameworth, 3401 East Augusta Avenue, Spokane, WA 99207, (509) 477-4727 ext. 1217; and Enforcement: Matt Holmquist, 3401 East Augusta Avenue, Spokane, WA 99207, (509) 477-4727 ext. 102.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. Chapter 19.85 RCW applies to state agencies only as specified in RCW 19.85.01 [19.85.011].

     RCW 70.94.141(1) states: "An air pollution control authority shall not be deemed to be a state agency."

     SRCAA is a local air pollution control authority. Therefore chapter 19.85 WAC [RCW] does not apply to local air pollution control authority rule development/amendments.

     A cost-benefit analysis is not required under RCW 34.05.328. RCW 34.05.010 states: "Agency" means any state board, commission, department, institution of higher education, or officer, authorized by law to make rules or to conduct adjudicative proceedings, except those in the legislative or judicial branches, the governor, or the attorney general except to the extent otherwise required by law and any local governmental entity that may request the appointment of an administrative law judge under chapter 42.41 RCW. RCW 70.94.141(1) states: "An air pollution control authority shall not be deemed to be a state agency." Therefore, RCW 34.05.328 does not apply to this rule amendment.

December 18, 2009

Charles E. Studer

Environmental Engineer

SECTION 6.04 EMISSION OF AIR CONTAMINANT: DETRIMENT TO

PERSON OR PROPERTY ((ODORS AND NUISANCES))

     A. Definitions: All definitions in SRCAA Regulation I, Article 1, Section 1.04 apply to this Section, unless otherwise defined herein.

     B. The Agency implements and enforces WAC 173-400-040 in Spokane County in addition to Section 6.04. The provisions of RCW 70.94.640 are herein incorporated by reference.

     C. It shall be unlawful for any person to cause or allow the emission of any air contaminant in sufficient quantities and of such characteristics and duration as is, or is likely to be:

     1. Injurious to the health or safety of human, animal, or plant life;

     2. Injurious or cause damage to property; or

     3. Which unreasonably interferes with enjoyment of life and property.

     D. With respect to odor, the Agency may take enforcement action, pursuant to chapter 70.94 RCW, under this section if the Control Officer or a duly authorized representative has documented all of the following:

     1. The detection by the Control Officer or a duly authorized representative of an odor at a level 2 or greater, according to the following odor scale:

     Level 0 - no odor detected,

     Level 1 - odor barely detected,

     Level 2 - odor is distinct and definite, any unpleasant characteristics recognizable,

     Level 3 - odor is objectionable enough or strong enough to cause attempts at avoidance, and

     Level 4 - odor is so strong that a person does not want to remain present.

     2. An affidavit from a person making a complaint that demonstrates that they have experienced air contaminant emissions in sufficient quantities and of such characteristics and duration so as to unreasonably interfere with their enjoyment of life and property (the affidavit should describe or identify, to the extent possible, the frequency, intensity, duration, offensiveness, and location of the odor experienced by the complainant); and

     3. The source of the odor.

     E. With respect to odor, the Agency will determine whether or not a violation of subsection C has occurred based on its review of the information documented under subsection D, as well as any other relevant information obtained during the investigation

     F. When determining whether to take formal enforcement action authorized in subsection D above, the Agency may consider written evidence provided by the person causing the odors which demonstrates to the satisfaction of the Agency that all controls and operating practices to prevent or minimize odors to the greatest degree practicable are being employed. If the Agency determines that all such efforts are being employed by the person causing the odors and that no additional control measures or alternate operating practices are appropriate, the Agency may decline to pursue formal enforcement action.

     G. The Agency will document all the criteria used in making its determination in subsection F above as to whether or not the person causing the odors is employing controls and operating practices to prevent or minimize odors to the greatest degree practicable. Said documentation, except information that meets the criteria of confidential in accordance with RCW 70.94.205, will be made available to any person making a public records request to the Agency for said documentation, including, but not limited to complaining parties.

     H. Nothing in this Section shall be construed to impair any cause of action or legal remedy of any person, or the public for injury or damages arising from the emission of any air contaminant in such place, manner or concentration as to constitute air pollution or a common law nuisance.

     ((A. Effective control apparatus and measures shall be installed and operated to reduce odor-bearing gases and particulate matter emitted into the atmosphere to a reasonable minimum.

     B. The Board or Control Officer may establish reasonable requirements that the building or equipment be closed and ventilated in such a way that all the air, gas, and particulate matter are effectively treated for removal or destruction of odorous matter or other air contaminants before emission to the atmosphere.

     C. Odors caused by agricultural activities consistent with good agricultural practices exempt from this section:

     1. Odors caused by agricultural activities consistent with good agricultural practices on agricultural land are exempt from the requirements of this section unless they have a substantial adverse effect on public health. In determining whether agricultural activity is consistent with good agricultural practices, the Authority shall consult with a recognized third-party expert in activity prior to issuing any notice of violation.

     2. Any notice of violation issued under this section pertaining to odors cause by agricultural activity shall include a statement as to why the activity is inconsistent with good agricultural practices, or a statement that the odors have substantial adverse effect on public health.

     3. In any appeal to the Pollution Control Hearings Board or any judicial appeal of final order pertaining to odors caused by agricultural activity, the Authority shall prove the activity is inconsistent with good agricultural practices or that the odors have a substantial adverse impact on public health.

     4. If a person engaged in agricultural activity on a contiguous piece of agricultural land sells or has sold a portion of that land for residential purposes, the exemption of this section shall not apply.

     5. As used in this section:

     a. "Agricultural activity" means the growing, raising, or production of horticultural or viticultural crops, berries, poultry, livestock, grain, mint, hay, and dairy products.

     b. "Good agricultural practices" mean economically feasible practices which are customary among or appropriate to farms and ranches of a similar nature in the local area.

     c. "Agricultural land" means at least five acres of land devoted primarily to the commercial production of livestock or agricultural commodities.

     6. The Authority, implements and enforces WAC 173-400-040(4), in Spokane County in addition to Parts A through C.6 of this Section. The more stringent requirement in WAC 173-400-040(4) or Section 6.03 supercedes the lesser.))

     Reviser's note: The typographical errors in the above material occurred in the copy filed by the Spokane Regional Clean Air Agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

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