WSR 14-19-010

PERMANENT RULES

[Filed September 4, 2014, 1:33 p.m., effective October 5, 2014]

Effective Date of Rule: Thirty-one days after filing.

Purpose: The proposal clarifies that it's the applicant's responsibility to submit a request and receive approval from both ecology and Spokane Regional Clean Air Agency (SRCAA) if a variance pertains to state and local regulations. The proposal clarifies that for variances that require ecology approval, ecology's approval is required before SRCAA will begin processing the request. The proposal explains that applications must be complete and accurate before SRCAA's sixty-five day timeline begins for approving or denying a variance. It also requires that certain information be included with variance requests (e.g., specific laws/regulations from which variance is being sought, maps of the site subject to the variance, etc.). It notes that for variances from state rules, SRCAA may determine that the thirty day public notice and public hearing conducted by ecology satisfies the provisions in WAC 173-400-171. In addition, there is a new $150 filing fee and actual legal fees incurred by the agency are included in the variance fees.

Citation of Existing Rules Affected by this Order: Amending SRCAA Regulation I, Article III.

Statutory Authority for Adoption: RCW 70.94.141, 70.94.380(2), 70.94.181.

Other Authority: Chapter 70.94 RCW.

Adopted under notice filed as WSR 14-15-084 on July 17, 2014.

A final cost-benefit analysis is available by contacting Matt Holmquist, 3104 East Augusta Avenue, Spokane, WA 99207, phone (509) 477-4727, fax (509) 477-6828, e-mail mholmquist@spokanecleanair.org. This is a local agency rule and RCW 34.05.328 does not apply pursuant to RCW 70.94.141(1).

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 2, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 2, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

Date Adopted: September 4, 2014.

Matt Holmquist

Compliance Administrator

A. Applicability (RCW 70.94.181)

Any person, or group of persons, who ((own or is in control of any plant, building, structure, establishment, processor equipment)) is directly impacted by any SRCAA rule or regulation, may apply to the Board for a variance from rules or regulations governing the quality, nature, duration or extent of discharges of air contaminants. The application shall be accompanied by such information and data as the Board may require. ((The Board may grant such variance, provided that variances to state rules shall require Ecology's approval, prior to being issued by the Board.)) The total time period for a variance and renewal of such variance shall not exceed one year.

Pursuant to RCW 70.94.181(1), ((V))variances may be issued by ((either Ecology, where Ecology has retained jurisdiction, or)) the Board((, but only after public involvement per WAC 173-400-171,)) if it finds that:

1. The emissions occurring or proposed to occur do not endanger public health, safety, or the environment; and

2. Compliance with the rules or regulations from which variance is sought would produce serious hardship without equal or greater benefits to the public.

((B)) D. Complete Application

In addition to the requirements of Section 3.01.A above, applicants((tions)) seeking a variance must submit an accurate and complete application. Application must be made using forms provided by SRCAA. An application is not deemed complete until all of the information identified below is received. At a minimum, applicants must submit all of the following information: ((shall not be considered complete unless the applicant provides:))

1. A list of interested parties and neighbors within 500 feet or more of the property on which the variance is proposed to occur, including mailing addresses, or as deemed necessary by the Control Officer.

((C)) E. Public Notice and Public Hearing

Variance may be issued only after public involvement per WAC 173-400-171. No variance shall be granted pursuant to this section until the Board has considered the relative interests of the applicant, other owners of property likely to be affected by the discharges, and the general public. The Board shall conduct a fact-finding public hearing, upon due notice being published and sent to all interested parties within 500 feet of the property on which the variance is proposed. The Control Officer may require notice to parties beyond 500 feet, if deemed necessary. A 30-day advance public notice shall be published in a newspaper of general circulation in the area of the proposed variance and shall include the following information:

1. The time, date, and place of the hearing;

2. The name and address of the owner or operator and the source;

3. A brief description of the variance request; and

4. The deadline for submitting written comments to ((the Agency)) SRCAA.

((D)) F. Variance Limitations

Any variance or renewal thereof shall be granted within the requirements of Section 3.01.A and C of this Regulation for not more than one (1) year under conditions consistent with the reasons therefore, and within the following limitations:

1. If the variance is granted on the ground that there is no practicable means known or available for the adequate prevention, abatement or control of the pollution involved, it shall be only until the necessary means for prevention, abatement or control become known and available, and subject to the taking of any substitute or alternate measure that the Board may prescribe.

2. If the variance is granted on the ground that compliance with the particular requirement or requirements from which variance is sought will require the taking of measures which, because of their extent or cost, must be spread over a considerable period of time, it shall be for a period not to exceed such reasonable time, as in the view of the Board, is requisite for the taking of the necessary measures. A variance granted on the ground specified herein, shall contain a timetable for the taking of action in an expeditious manner and shall be conditioned on adherence to such timetable.

3. If the variance is granted on the ground that it is justified to relieve or prevent hardship of a kind other than that provided for in Sections 3.01.((D))F.1 and 3.01.((D))F.2 of this Regulation, it shall be for not more than one (1) year.

((E)) G. Renewal

Any variance granted pursuant to this section may be renewed on terms and conditions and for periods which would be appropriate on initial granting of a variance. If complaint is made to the Board on account of the variance, no renewal thereof shall be granted unless, following a public hearing on the complaint on due notice, the Board finds that renewal is justified. No renewal shall be granted except on application therefore. Any such application shall be made at least sixty (60) days prior to the expiration of the variance. Immediately upon receipt of a((n)) complete and accurate application for renewal, the Board shall give public notice of such application in accordance with rules and regulations of Ecology or ((the Authority)) SRCAA.

((F)) H. Appeal Process

A variance or renewal shall not be a right of the applicant or holder thereof, but shall be granted at the discretion of the Board. However, any applicant adversely affected by the denial or the terms and conditions of the granting of an application for a variance or renewal of a variance by the Board, may obtain judicial review thereof only under the provisions of Chapter 34.05 RCW, as ((now)) of the effective date of this regulation or thereafter amended.

((G)) I. Emergency Provisions

Nothing in this section and no variance or renewal granted pursuant hereto shall be construed to prevent or limit the application of the emergency provisions and procedures of RCW 70.94.710 through 70.94.730 (Air Pollution Episodes) to any person or his or her property.

((H)) J. Processing Period

Unless the applicant and the Board agree to a continuance, ((A)) an application for a variance, or for the renewal thereof, submitted to the Board pursuant to ((this)) Section 3.01.B.1 shall be approved or disapproved by the Board within sixty-five (65) days of ((receipt)) SRCAA determining that the application for a variance is accurate and complete and receiving the filing fee reference in Section 3.02.A((, unless the applicant and the Board agree to a continuance)). If approval from Ecology is required per Section 3.01.B.2, and unless the applicant and the Board agree to a continuance, approval or denial by the Board shall occur within sixty-five (65) days of receipt of all of the following: an accurate and complete application, Ecology's written decision to approve the variance, and the filing fee referenced in Section 3.02.A.

((I. Per 40 CFR 52.2476(b), Variances, approved under this Article, shall not be included in orders or permits provided for in RCW 70.94.152 or RCW 70.94.161 until such time as the variance and has been accepted by the EPA as part of an approved SIP, in accordance with 40 CFR 51.104.))

For applications submitted pursuant to Section 3.01.B.1 (SRCAA-only regulations), a ((A)) filing fee as specified in Section 10.08 of this Regulation and SRCAA's fee schedule shall be submitted at the time of application and shall be applied to the final invoice fee. For applications submitted pursuant to Section 3.01.B.2 (SRCAA regulations and Ecology rules), a filing fee as specified in Section 10.08 of this Regulation and SRCAA's fee schedule shall be submitted at the same time Ecology's written approval is submitted to SRCAA pursuant to Section 3.01.J and shall be applied to the final invoice fee.

The applicant shall also be responsible to pay all legal fees incurred by SRCAA directly attributed to the application for a variance and costs associated with any legal notice(s) required pursuant to this Article.

An hourly fee, as established in Section 10.08((.D)) of this Regulation and SRCAA's fee schedule, shall also be assessed to, and paid by, the applicant for applications reviewed by SRCAA pursuant to this Article.