WSR 98-15-144

PROPOSED RULES

SOUTHWEST AIR POLLUTION

CONTROL AUTHORITY

[Filed July 22, 1998, 9:57 a.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 98-12-010.

Title of Rule: SWAPCA 400 - General Regulations for Air Pollution Sources.

SWAPCA 400-130 Use of Emission Reduction Credits, the purpose of this section is to identify the requirements and procedures for use of emission reduction credits.

SWAPCA 400-131 Deposit of Emission Reduction Credits into Bank, the purpose of this section is to identify the requirements and procedures for depositing emission reduction credits into the credit bank maintained by SWAPCA.

SWAPCA 400-136 Maintenance of the Bank, the purpose of this section is to identify the requirements for SWAPCA to maintain the emission reduction credit bank, how the credits are to be issued and describe how to manage credits that are expired beyond the five year time limit.

SWAPCA 400-141 Prevention of Significant Deterioration (PSD), the purpose of this section is to identify the requirements for those sources subject to federal PSD permitting requirements and provides reference to the appropriate federal regulations.

SWAPCA 400-171 Public Involvement, the purpose of this section is to identify the requirements for public notice of SWAPCA permitting actions and the process by which public involvement is to be administered. This section also identifies those documents which are required to be subject to a public notice and those that are not required to be subject to public notice.

SWAPCA 400-180 Variance, the purpose of this section is to identify the requirements and procedures for obtaining a variance from the SWAPCA board of directors for an existing permit or the established regulations.

SWAPCA 400-230 Regulatory Actions and Civil Penalties, the purpose of this section is to identify the different types of common regulatory orders issued by SWAPCA and identify the enforcement and civil penalty authorities of SWAPCA.

SWAPCA 400-250 Appeals, the purpose of this section is to identify the requirements and procedures for appeals to any SWAPCA decision or regulatory order issued by the agency.

SWAPCA 400-280 Powers of Authority, the purpose of this section is to identify the powers vested in SWAPCA under RCW 70.94.141 and 43.21B.240.

APPENDIX A SWAPCA Method 9 - Visual Opacity Determination Method, the purpose of this section is to describe the procedure for performing visual opacity readings as part of compliance and enforcement activities by agency staff. This procedure is also to be used by sources in SWAPCA jurisdiction for self determination of compliance with regulatory standards and permit conditions.

Purpose: See above.

Statutory Authority for Adoption: RCW 70.94.141.

Statute Being Implemented: RCW 70.94.141.

Summary: SWAPCA 400-130 Use of Emission Reduction Credits, this section identifies the requirements and procedures for use of emission reduction credits once they have been deposited in the emission reduction credit bank maintained by SWAPCA.

SWAPCA 400-131 Deposit of Emission Reduction Credits into Bank, this section describes the requirements and procedures for depositing emission reduction credits into the credit bank maintained by SWAPCA.

SWAPCA 400-136 Maintenance of the Bank, this section identifies the requirements for SWAPCA to maintain the emission reduction credit bank, how the credits are to be issued and describe how to manage credits that are expired beyond the five year time limit.

SWAPCA 400-141 Prevention of Significant Deterioration (PSD), this section describes the requirements for those sources which would be subject to the federal PSD permitting requirements and provides reference to the appropriate federal regulations.

SWAPCA 400-171 Public Involvement, this section describes the requirements for public notice of SWAPCA permitting actions and the process by which public involvement is to be administered. This section also identifies those documents which are required to be subject to a public notice process and those that are not required to be subject to public notice.

SWAPCA 400-180 Variance, this section describes the requirements and procedures for obtaining a variance from the SWAPCA board of directors for an existing permit or the established regulations.

SWAPCA 400-230 Regulatory Actions and Civil Penalties, this section identifies the different types of common regulatory orders issued by SWAPCA and identifies the enforcement and civil penalty authorities of SWAPCA.

SWAPCA 400-250 Appeals, this section identifies the requirements and procedures for appeals to any SWAPCA decision or regulatory order issued by the agency.

SWAPCA 400-280 Powers of Authority, this section identifies the powers and authority vested in SWAPCA under RCW 70.94.141 and 43.21B.240.

APPENDIX A SWAPCA Method 9 - Visual Opacity Determination Method, this section describes the procedure for performing visual opacity readings as part of compliance and enforcement activities by agency staff. This procedure is also to be used by sources in SWAPCA jurisdiction for self determination of compliance with regulatory standards and permit conditions.

Reasons Supporting Proposal: See above.

Name of Agency Personnel Responsible for Drafting and Implementation: Paul Mairose, Southwest Air Pollution

Control Authority, 1308 N.E. 134th Street, Vancouver, WA, (360) 374-3058 [574-3058]; and Enforcement: Robert D. Elliott, Southwest Air Pollution Control Authority, 1308 N.E. 134th Street, Vancouver, WA, (360) 574-3058.

Name of Proponent: Southwest Air Pollution Control Authority, governmental.

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

Explanation of Rule, its Purpose, and Anticipated Effects: SWAPCA 400-130 Use of Emission Reduction Credits, this is an existing rule. Proposed modifications are to reorganize this section for clarity and to make changes in the program to conform to federal guidelines on emission reduction credit banking so credits deposited by sources can be used to satisfy federal program requirements. This section is being changed to describe only the process of using ERCs. The existing discussion on acquisition is being moved to SWAPCA 400-131. The most significant change in this process is to change the time for use of an ERC from ten years to five years as required by the federal program guidelines.

SWAPCA 400-131 Deposit of Emission Reduction Credits into Bank, this is an existing rule. Proposed modifications are to restructure the section for clarity and describe only the actions involved in depositing emission reduction credits into the credit bank. The section has been rewritten for clarity.

SWAPCA 400-136 Maintenance of the Bank, this is an existing rule. Proposed modifications are to rewrite the section to only address the activities surrounding how SWAPCA maintains credits in the bank, how they are to be assigned, procedures for public involvement, annual review of the bank and expiration of credits older than five years.

SWAPCA 400-141 Prevention of Significant Deterioration (PSD), this is an existing rule. The proposed modification is to update the adoption date of the federal rules from 1993 to 1998 by incorporation by reference. No substantial changes in this program are proposed.

SWAPCA 400-171 Public Involvement, this is an existing rule. Proposed changes are clarifications to change the reference from SWAPCA 401 to chapter 173-401 WAC because SWAPCA adopts chapter 173-401 WAC by reference and has no separate rule. There are no substantive changes proposed in this section.

SWAPCA 400-180 Variance, this is an existing rule. Proposed changes are for clarification. The reference to "this chapter" is being changed to "SWAPCA regulations" for clarity. No substantial changes are proposed.

SWAPCA 400-230 Regulatory Actions and Civil Penalties, this is an existing rule. Proposed changes are to change the date at which a source is considered to be in default of payment of registration fees. The date is being changed from July 31 of each year to June 30 to better align this activity with the required fiscal year of SWAPCA.

SWAPCA 400-250 Appeals, this is an existing rule. Proposed changes are to change the reference to RCW 43.21B.120 to accurately reflect the proper citation of RCW 43.21B.230. No substantial changes in this section are proposed.

SWAPCA 400-280 Powers of Authority, this is an existing rule. Proposed changes are to add another subsection which identifies the requirement that SWAPCA may not hold adjudicative proceedings as provided in RCW 43.21B.240.

APPENDIX A SWAPCA Method 9 - Visual Opacity Determination Method, this is a new section. This section is proposed to describe the procedure for performing visual opacity readings as part of compliance and enforcement activities by agency staff. This procedure is also to be used by sources in SWAPCA jurisdiction for self determination of compliance with regulatory standards and permit conditions. SWAPCA previously relied on the ecology method for visual determinations, however, the ecology method makes recommendations for the reader to take pictures and record humidity which is not necessary to take an accurate visual reading. This rule making will document the method used by SWAPCA in current visual readings.

Proposal Changes the Following Existing Rules: See above.

No small business economic impact statement has been prepared under chapter 19.85 RCW. Changes proposed by the Southwest Air Pollution Control Authority are consistent with federal or state rules already in effect. This agency is not subject to the small business economic impact provision of chapter 19.85 RCW. A fiscal analysis has been performed to establish the basis for any proposed fee increases. Copies of this analysis are available at the Southwest Air Pollution Control Authority.

RCW 34.05.328 does not apply to this rule adoption. Pursuant to RCW 70.94.141(1), section 201, chapter 403, Laws of 1995, does not apply to this rule adoption. The Southwest Air Pollution Control Authority is not voluntarily invoking section 201, chapter 403, Laws of 1995.

Hearing Location: Office of the Southwest Air Pollution Control Authority, 1308 N.E. 134th Street, Vancouver, WA 98685, on October 1, 1998, at 3:00 p.m.

Assistance for Persons with Disabilities: Contact Mary Allen by September 29, 1998, TDD (360) 574-3058.

Submit Written Comments to: Paul T. Mairose, Southwest Air Pollution Control Authority, 1308 N.E. 134th Street, Vancouver, WA 98685, fax (360) 576-0925, by September 22, 1998.

Date of Intended Adoption: October 1, 1998.

July 22, 1998

Robert D. Elliott

Executive Director

AMENDATORY SECTION

SWAPCA 400-130 ~~Acquisition and~~ Use of Emission Reduction Credits

[Statutory Authority: Chapter 70.94.141 RCW and 70.94.331 RCW. Original adoption by Board 12/16/86; Amended by Board 9/21/93; 93-21-005 filed 10/7/93, effective 11/8/93; 95-17-084 filed 8/21/95, effective 9/21/95]

(((1) Applicability. The owner(s) or operator(s) of any source of emission shall maintain its ability to use said emission and credits through approval and registration with the Authority. If the owner or operator of said emission source fails to maintain or renew its annual registration 6 months beyond the due date or fails to pay its operating permit fee 6 months beyond the due date and has not applied for emission reduction credits, then said amount of emission reductions credit shall revert back to the Authority. The Authority shall keep said credits in a credit bank to be used by the Authority in the best interest of the area.

(2) Conditions for Establishing a Credit Bank.

~~(a) Only those quantifiable emissions that are considered surplus over and above those allowed in the Washington State Implementation Plan shall be available for said credit bank.~~

~~(b) Surplus emissions shall not have been transferred to another entity for use.~~

(c) Emission reduction credits established under SWAPCA 400-131 or used under SWAPCA 400-136 for a specific source shall not be included in the bank for public allocation unless specifically requested by the owner(s) or operator(s) of the source making the emissions reduction.

(3) Use of Credits.

(a) The Authority may authorize, at its discretion, the use of said particulate credits and volatile organic compound credits from the regional emission credit bank for other new air contaminant sources within the specific nonattainment area in the region to satisfy any emission offset requirements. (Refer to SWAPCA 400-110(3)(e) and WAC 173-400(6)(d))

~~(b) The Authority has established its policy and procedure for distribution of said credits as contained in (4) Maintenance of the Bank.~~

(4) Maintenance of the Bank.

(a) The Authority shall maintain an emission inventory of all allowed and actual emissions in each of the nonattainment areas by pollutant or in the case of ozone, it shall be volatile organic compounds and oxides of nitrogen.

(b) The emission credits contained in the bank shall be discounted by 10% to allow for minor emissions increases in nonattainment areas by minor sources each of which would emit less than one ton per year. Minor emitting sources shall be ineligible to receive or expend an emission reduction credit as identified in SWAPCA 400-131 or 400-136.

(c) The Control Officer shall not provide greater than 10% of the available emission credit in the bank to a single applicant. Any exceptions shall be considered on a case-by-case basis by the Board of Directors after a public notice at the next regularly scheduled meeting.

(d) When the Control Officer issues credits for a new or modified source, the amount of emission credits shall be removed from the bank and a Regulatory Order allocating the emission credits shall be issued. The applicant shall start a continuous program of construction or process modification within 18 months. If the applicant does not exercise the approval, the emission credit shall expire and revert to the bank. If there is a six month delay in construction after the start of a continuous program to construct or modify a source or emissions unit the remaining amount of the emission reduction credit shall be reviewed by the Control Officer and if it is determined that the unused portion of the credit will not, in all likelihood be used in the next year, the Control Officer shall notify the applicant that the credit has expired and shall revert to the bank. The applicant shall reapply, as needed, for use of the emission reduction credits when a continuous program of construction or modification begins.

(5) Annual Review. The Authority shall review the content and administration of this section annually to ensure regulatory consistency and equity of impact as a portion of the Washington State Implementation Plan review. The results of the review shall be reported to the Board with recommendations for correction if the Control Officer deems that such corrections are necessary to properly administer the emission credit bank.))

(1) Applicability. The owner(s) of any emission reduction credits (ERCs) shall maintain its ability to use said ERCs through approval and registration with the Authority. An ERC shall be considered an emission unit and subject to registration. If the owner of said ERCs fails to maintain or renew its annual registration 6 months beyond the due date or fails to pay its operating permit fee 6 months beyond the due date or has not applied for emission reduction credits, then said amount of emission reductions credit shall revert back to the Authority. The Authority may keep said credits in a credit bank to be used by the Authority in the best interest of the area or credits may be dissolved by the Authority.

(2) Permissible use. An ERC may be used to satisfy the requirements for authorization of a bubble under SWAPCA 400-120, as a part of a determination of "net emissions increase," as an offsetting reduction to satisfy the requirements for new source review per SWAPCA 400-111, 400-112, SWAPCA 400-113(3) or SWAPCA 400-113(6), or to satisfy requirements for PSD review per SWAPCA 400-113(4). The use of any ERC shall be consistent with all other federal, state, and local requirements of the program in which it is used.

(3) Conditions of use. An ERC may be used only for the contaminant(s) for which it was issued and in the area for which it was issued except in the case of transportable pollutants which will be determined on a case by case basis and per interagency agreement for interstate transfers. The Authority may impose additional conditions of use of ERCs to account for temporal and spatial differences between the emissions unit(s) that generated the ERC and the emissions unit(s) that use the ERC. An ERC may not be used in place of a growth allowance as required under SWAPCA 400-111.

(4) Procedures to use ERC.

(a) Individual use. When an ERC is used under subsection (2) of this section, an application must be submitted to the Authority and the Authority must issue a Regulatory Order for use of the ERC(s).

(b) Sale or transfer of an ERC. An ERC may be sold or otherwise transferred to a person other than the person to whom it was originally issued. An application for the sale or transfer must be submitted by the original ERC owner to the Authority. After receiving an application, the Authority shall reissue a Regulatory Order to the new owner. The Authority shall update the ERC bank to reflect the availability or ownership of ERCs. No discounting shall happen as part of this type of transaction.

(5) Expiration of ERC. An unused ERC and any unused portion thereof shall expire five years after the date the emission reduction was accomplished and not the date of the Regulatory Order.

(6) Maintenance of ERCs. The Authority has established its policy and procedure for maintenance of said credits in 400-136 Maintenance of Emission Reduction Credits in Bank.

Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.

AMENDATORY SECTION

SWAPCA 400-131 ~~Issuance of Emission Reduction Credits~~ Deposit of Emission Reduction Credits into Bank

[Statutory Authority: Chapter 70.94.141 RCW, 70.94.331 RCW, and 70.94.850 RCW. Originally adopted by Board as 400-120 on 3/20/84; renumbered to 400-131 in 93-21-005 filed 10/7/93, effective 11/8/93; 95-17-084 filed 8/21/95, effective 9/21/95]

(((1) Applicability. The owner(s) or operator(s) of any source(s) may apply to the Authority for an emission reduction credit (ERC) if the source proposes to reduce its actual emissions rate for any contaminant regulated by state or federal law or regulations established to implement such law(s) for which the emission requirement may be stated as an allowable limit in weight of contaminant per unit time for the emissions unit(s) involved.

~~(2) Time of application. The application for an ERC must be made prior to or within one hundred eighty days after the emission reduction has been accomplished.~~

~~(3) Conditions. An ERC may be authorized provided the following conditions have been demonstrated to the satisfaction of the Authority.~~

(a) The quantity of emissions in the ERC shall be less than or equal to the old allowable emissions rate or the old actual emissions rate, whichever is the lesser, minus the new allowable emissions rate.

(b) The ERC application must include a description of all the changes that are required to accomplish the claimed emissions reduction, such as, new control equipment, process modifications, limitation of hours of operation, permanent shutdown of equipment, specified control practices and any other pertinent supporting information.

~~(c) The ERC must be large enough to be readily quantifiable relative to the source strength of the emissions unit(s) involved.~~

(d) No part of the emission reductions claimed for credit shall have been used as part of a determination of net emission increase, nor as part of an offsetting transaction under SWAPCA 400-112(5) nor as part of a bubble transaction under SWAPCA 400-120 nor to satisfy NSPS, NESHAPS, BACT, LAER or other applicable emission standard.

(e) Concurrent with or prior to the authorization of an ERC, the applicant shall have received a regulatory order or permit that establishes total allowable emissions from the source or emissions unit of the contaminant for which the ERC is requested, expressed as weight of contaminant per unit time.

~~(f) The use of any ERC shall be consistent with all other federal, state, and local requirements of the program in which it is used.~~

(4) Additional information. Within thirty days after the receipt of an ERC application, supporting data and documentation, the Authority may require the submission of additional information needed to review the application.

(5) Approval. Within thirty days after all required information has been received, the Authority shall approve or deny the application, based on a finding that conditions in subsection (3)(a) through (f) of this section have been satisfied or not. If the application is approved, the Authority shall:

(a) Issue a regulatory order or equivalent document to assure that the emissions from the source will not exceed the allowable emission rates claimed in the ERC application, expressed in weight of pollutant per unit time for each emission unit involved. The regulatory order or equivalent document or Order shall include any conditions required to assure that subsection (3)(a) through (f) of this section will be satisfied. If the ERC depends in whole or in part upon the shutdown of equipment, the regulatory order or equivalent document must prohibit operation of the affected equipment; and,

(b) Issue a certificate of emission reduction credit. The certificate shall specify the issue date, the contaminant(s) involved, the emission decrease expressed as weight of pollutant per unit time, the nonattainment area involved, if applicable, and the person to whom the certificate is issued.))

(1) Applicability. The owner(s) or operator(s) of any source(s) may apply to the Authority for an emission reduction credit (ERC) if the source proposes to reduce its actual emissions rate for any contaminant regulated by state or federal law or regulations established to implement such law(s) for which the emission requirement may be stated as an allowable limit in weight of contaminant per unit time for the emissions unit(s) involved.

(2) Time of application. The application for an ERC must be made prior to or within one hundred eighty days after the emission reduction has been accomplished.

(3) Conditions. An ERC may be authorized provided the following conditions have been demonstrated to the satisfaction of the Authority.

(a) No part of the emission reductions claimed for credit shall have been required pursuant to an adopted rule.

(b) The quantity of emissions reductions claimed for credit shall be less than or equal to the old allowable emissions rate or the old actual emissions rate, whichever is the lesser, minus the new allowable emissions rate.

(c) The ERC application must include a description of all the changes that are required to accomplish the claimed emissions reduction, such as, new control equipment, process modifications, limitation of hours of operation, permanent shutdown of equipment, specified control practices and any other pertinent supporting information.

(d) The quantity of emission reductions claimed must be greater than 1 ton/year and be readily quantifiable for the emissions unit(s) involved.

(e) No part of the emission reductions claimed for credit shall have been used as part of a determination of net emission increase, nor as part of an offsetting transaction under SWAPCA 400-112(5) nor as part of a bubble transaction under SWAPCA 400-120 nor to satisfy NSPS, NESHAPS, BACT, MACT, RACT, LAER or other applicable emission standard.

(f) Concurrent with or prior to the authorization of an ERC, the applicant shall have received a regulatory order or permit that establishes total allowable emissions from the source or emissions unit of the contaminant for which the ERC is requested, expressed as weight of contaminant per unit time.

(g) The use of any ERC shall be consistent with all other federal, state, and local requirements of the program in which it is used.

(a) Issue a regulatory order or equivalent document to assure that the emissions from the source will not exceed the allowable emission rates claimed in the ERC application, expressed in weight of pollutant per unit time for each emission unit involved. The regulatory order or equivalent document shall include any conditions required to assure that subsection (3)(a) through (f) of this section will be satisfied. If the ERC depends in whole or in part upon the shutdown of equipment, the regulatory order or equivalent document must prohibit operation of the affected equipment; and,

(b) Issue a Regulatory Order with emission reduction credit. The Regulatory Order shall specify the issue date, the contaminant(s) involved, the emission decrease expressed as weight of pollutant per unit time, the nonattainment area involved, if applicable, and the person to whom the Regulatory Order is issued.

(6) Maintenance and use of ERCs. The Authority has established its policy and procedure for maintenance of said ERCs in SWAPCA 400-136. The Authority has established its policy and procedure for use of ERCs in SWAPCA 400-130.

Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.

AMENDATORY SECTION

SWAPCA 400-136 ~~Use of Emission Reduction Credits~~ Maintenance of Emission Reduction Credits in Bank

[Statutory Authority: Chapter 70.94.141 RCW, 70.94.331 RCW, and 70.94.850 RCW. Original Board adoption as 400-125 4/17/84; renumbered to 400-136 in 93-21-005 filed 10/7/93, effective 11/8/93; 95-17-084 filed 8/21/95, effective 9/21/95]

(((1) Permissible use. An ERC may be used to satisfy the requirements for authorization of a bubble under SWAPCA 400-120, as a part of a determination of "net emissions increase," as an offsetting reduction to satisfy the requirements for new source review per SWAPCA 400-111, 400-112, SWAPCA 400-113(3) or SWAPCA 400-113(6), or to satisfy requirements for PSD review per SWAPCA 400-113(4).

(2) Surrender of ERC certificate. When an ERC is used under subsection (1) of this section, the certificate for the ERC must be surrendered to the Authority. If only a portion of the ERC is used, the amended certificate will be returned to the owner.

(3) Conditions of use. An ERC may be used only for the contaminant(s) for which it was issued. The Authority may impose additional conditions of use to account for temporal and spatial differences between the emissions unit(s) that generated the ERC and the emissions unit(s) that use the ERC.

(4) Sale of an ERC. An ERC may be sold or otherwise transferred to a person other than the person to whom it was originally issued. Within thirty days after the transfer of ownership, the certificate must be surrendered to the Authority. After receiving the certificate, the Authority shall reissue the certificate to the new owner. The Authority shall update the ERC bank to reflect the availability of ERCs.

(5) Time of use. An unused ERC and any unused portion thereof shall expire ((ten)) five years after the date of original issue. The ten year time period shall restart with each ERC transaction involving the use, lease or sale of emission reduction credits. The emission reduction credits shall be discounted at the applicable ratio, if any, on a one time basis at the time of original issue. Emission reduction credits shall not be discounted each time a transaction is completed.

(6) Discount due to change in SIP. If reductions in emissions beyond those identified in the Washington State Implementation Plan are required to meet an ambient air quality standard, if the standard cannot be met through controls on operating sources, and if the plan must be revised, an ERC may be discounted by the Authority after public involvement per SWAPCA 400-171. Any such discount shall not exceed the percentage of additional emission reduction needed to reach attainment.))

(1) Applicability. The Authority shall maintain a bank for the purpose of administering emission reduction credits (ERCs) pursuant to the provisions of RCW 70.94.850.

(2) Conditions for ERC Bank.

(a) ERCs established under SWAPCA 400-131 or used under SWAPCA 400-130 shall be available for said credit bank.

(b) ERCs shall not have been used, sold or transferred to another entity for use; e.g. ERCs cannot be banked or used by two sources at one time.

(c) ERCs established under SWAPCA 400-131 or used under SWAPCA 400-130 for a specific source shall be allocated privately an not be included in the bank for public allocation unless 1) specifically requested by the owner(s) of the ERCs or 2) if the owner of the ERCs fails to maintain registration with the Authority.

(3) Maintenance of the Bank.

(a) The Authority shall maintain an emission inventory of all allowed and actual emissions (including any growth allowances identified in a Maintenance Plan) in each of the nonattainment or maintenance areas by pollutant or in the case of ozone, it shall be volatile organic compounds and oxides of nitrogen.

(b) The ERCs contained in the bank shall be discounted by 10% to allow for minor emissions increases in nonattainment areas by minor sources each of which would emit less than one ton per year. Minor emitting sources shall be ineligible to receive or expend an emission reduction credit as identified in SWAPCA 400-131 or 400-130. ERCs shall be discounted at the applicable ratio on a one time basis at the time of deposit into the bank. ERCs shall not be discounted each time a transaction is completed. If reductions in emission beyond those identified in the Washington State Implementation Plan are required to meet an ambient air quality standard, if the standard cannot be met through controls on operating sources, and if the plan must be revised, ERCs may be discounted by the Authority over and above the initial 10% without compensation to the holder after public involvement per SWAPCA 400-171. Any such discount shall not exceed the percentage of additional emission reduction needed to reach or maintain attainment status.

(c) The Control Officer shall not provide greater than 25% of the available emission credit in the bank to a single applicant. Any exceptions shall be considered on a case-by-case basis by the Board of Directors after a public notice at the next regularly scheduled meeting.

(4) Annual Review. The Authority shall review the content and administration of this section annually to ensure regulatory consistency and equity of impact as a portion of the Washington State Implementation Plan review. The results of the review shall be reported to the Board with recommendations for correction if the Control Officer deems that such corrections are necessary to properly administer the emission credit bank.

(5) Issuance and use of ERCs. The Authority has established its policy and procedure for deposit of ERCs in SWAPCA 400-131. The Authority has established its policy and procedure for use of ERCs in SWAPCA 400-130.

(6) Expiration of Public Credits.

(a) Emissions reduction credits deposited in the bank for public allocation (public bank) as the result of the shutdown of the Carborundum facility expired on July 8, 1996 as provided in Regulatory Order SWAPCA 86-843 establishing such credits.

(b) Emission reduction credits deposited in the bank for public allocation as the result of Board Resolution 1988-3 amended by Board Resolution 1989-3 expire on January 24, 1999.

(d) Each source which had credits assigned from the public bank by issuance of a Regulatory Order shall be approved for the total of previous emissions plus any additional amount approved under a Regulatory Order assigning public credits to that source effective July 8, 1996.

(e) Emission reduction credits deposited into the public bank shall not be available to be assigned to any source after July 8, 1996.

Reviser's note: The typographical errors in the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

AMENDATORY SECTION

SWAPCA 400-141 Prevention of Significant Deterioration (PSD)

[Statutory Authority: Chapter 70.94.141 RCW and 70.94.331 RCW. Original Board adoption 93-21-005 filed 10/7/93, effective 11/8/93; 95-17-084 filed 8/21/95, effective 9/21/95]

Section 40 CFR 52.21, Subparts (b), (c), (d), (e), (f), (g), (h), (i), (j), (k), (l), (m), (n), (o), (p), (r), (t), (v), and (w), Prevention of Significant Deterioration of Air Quality, as in effect on ((~~March 3, 1993~~)) July 1, 1998, are incorporated by reference with the following additions and modifications:

(1) Administrator. In 40 CFR 52.21 (b)(17), federally enforceable, (f)(l)(v), (f)(3), and (f)(4)(i), exclusions from increment consumption, (g), redesignation, (l) and (2), air quality models, (p)(2), federal land manager, and (t), disputed permits or redesignations, the word "Administrator" shall be construed in its original meaning. In 40 CFR 52.21 (b)(3)(iii) Administrator shall mean the Administrator of EPA, Director of Ecology and Control Officer of the Authority.

(2) Contemporaneous. Subpart 40 CFR 52.21 (b)(3)(ii) is changed to read: "An increase or decrease in actual emissions is contemporaneous with the increase from the particular change only if it occurs between the date ten years before construction on the particular change commences and the date that the increase from the particular change occurs. If a decrease occurred more than one year prior to the date of submittal of the Notice of Construction application for the particular change it can only be credited if the decrease has been documented by an emission reduction credit."

(3) Public participation. Subpart 40 CFR 51.166(q) public participation, as in effect ((~~March 3, 1993~~)) July 1, 1998 is hereby incorporated by reference except that in 40 CFR 51.166 (q)(2)(iv), the phrase "specified time period" shall mean thirty days and the word "Administrator" shall mean the EPA Administrator.

(4) Section 40 CFR 51.166 Subpart (p)(1). Sources Impacting Federal Class I areas - additional requirements - Notice to EPA, as in effect on ((~~March 3, 1993~~)) July 1, 1998, is herein incorporated by reference.

(5) Secondary emissions. Subpart 40 CFR 52.21 (b)(18) is changed to read: Emissions which would occur as a result of the construction or operation of a major stationary source or major modification, but do not come from the major stationary source or major modification itself. For the purpose of this section, secondary emissions must be specific, well defined, quantifiable, and impact the same general area as the stationary source or modification which causes the secondary emissions. Secondary emissions may include, but are not limited to:

(a) Emissions from ships or trains coming to or from the new or modified stationary source; and

(b) Emissions from any offsite support facility which would not otherwise be constructed or increase its emissions as a result of the construction or operation of the major stationary source or major modification.

(6) Significant. The definition of "significant" in 40 CFR 52.21 (b)(23) is changed to exclude from the list of pollutants which may trigger PSD review any pollutant listed under FCAA �112.

[Note - SWAPCA has not been delegated authority by Ecology for the PSD program.]

AMENDATORY SECTION

SWAPCA 400-171 Public Involvement

[Statutory Authority: Chapter 70.94.141 RCW and 70.94.331 RCW. Original Board adoption 93-21-005 filed 10/7/93, effective 11/8/93; 95-17-084 filed 8/21/95, effective 9/21/95]

(1) Applicability. The Authority shall provide public notice for a preliminary determination of a regulatory order prior to issuance of the final approval or denial of any of the following types of applications or other actions:

(a) Notice of Construction application for any new or modified source or emissions unit that results in a significant increase in emissions (actual or potential to emit) of any pollutant regulated by state or federal law (significant as defined in SWAPCA 400-030). Furthermore, public notice for each regulatory order for a non-significant increase may be provided at the discretion of the Control Officer; or

(b) Any application or other proposed action for which a public hearing is required by PSD rules; or

(d) Any order to establish a compliance schedule or a variance; or

(e) The establishment, disestablishment or redesignation of a nonattainment area, or the changing of the boundaries thereof; or

(f) Any order to demonstrate the creditable height of a stack which exceeds the GEP formula height and sixty-five meters, by means of a fluid model or a field study, for the purposes of establishing an emission limitation; or

(g) Any order to authorize a bubble; or

(h) An order issued under SWAPCA 400-091 which establishes limitations on a source's potential to emit for the purpose of opting out of the Title V Air Operating Permit program (((~~SWAPCA~~)) WAC 173-401); or

(i) Any Notice of Construction application or other proposed action made pursuant to this regulation in which there is a substantial public interest according to the discretion of the Control Officer;

except:

(j) Any Notice of Construction application or other proposed action which results in a reduction of emissions from a previously established emission limit in an order issued by the Authority that has previously been subjected to public notice, or other permitting authority, may not require public notice in accordance with this section. This exemption does not apply to those sources opting out of the Title V Air Operating Permit program (((~~SWAPCA~~)) WAC 173-401).

(k) Any Notice of Construction application or other proposed action which does not result in a net emissions increase (actual or potential to emit) unless otherwise required by the Authority.

(l) Public notice for a preliminary determination of a regulatory order may run concurrently with immediate approval to operate provided that a corporate officer of the source submits an affidavit that they understand the liability associated with the action and agree to implement any necessary changes that would have otherwise resulted from the public comment process.

(2) Public notice. Public notice shall be made only after all information required by the Authority has been submitted and after applicable preliminary determinations, if any, have been made. Public notice shall include:

(a) Availability for public inspection in at least one location near the proposed project, of the nonproprietary information submitted by the applicant and of any applicable preliminary determinations, including analyses of the effect(s) on air quality.

(b) Publication in a newspaper of general circulation in the area of the proposed project of notice:

(i) Giving a brief description of the proposal;

(ii) Advising of the location of the documents made available for public inspection;

(iii) Advising of a thirty-day period for submitting written comment to the Authority;

(iv) Advising that a public hearing may be held if the Authority determines within a thirty-day period that significant public interest exists.

(d) Public participation procedures for Notice of Construction applications that are processed in coordination with an application to issue or modify a Title V Air Operating Permit shall be conducted as provided in ((~~SWAPCA~~)) WAC 173-401.

(3) Public comment. No final decision on any application or action of any of the types described in subsection (1) of this section, shall be made until the public comment period has ended and any comments received have been considered. Unless a public hearing is held, the public comment period shall be the thirty-day period for written comment published as provided above. If a public hearing is held, the public comment period shall extend through the hearing date and thereafter for such period, if any, as the notice of public hearing may specify.

(4) Public hearings. The applicant, any interested governmental entity, any group or any person may request a public hearing within the thirty-day period published as above. Any such request shall indicate the interest of the entity filing it and why a hearing is warranted. The Authority may, at the discretion of the Control Officer, hold a public hearing if it determines significant public interest exists. Any such hearing(s) shall be held upon such notice and at a time(s) and place(s) as the Authority deems reasonable.

(5) Other requirements of law. Whenever procedures permitted or mandated by law will accomplish the objectives of public notice and opportunity for comment, such procedures may be used in lieu of the provisions of this section.

(6) Public information. Copies of Notices of Construction, regulatory orders, and modifications thereof which are issued hereunder shall be available for public inspection on request at the Authority.

AMENDATORY SECTION

SWAPCA 400-180 Variance

[Statutory Authority: Chapter 70.94.141 RCW, 70.94.181 RCW, and 70.94.331 RCW. Original Board adoption 12/17/68 (Regulation 1 Sec 2.07); Amended by Board 12/18/79; Amended by Board 4/17/84; Repealed and renumbered to 400-180 93-21-005 filed 10/7/93, effective 11/8/93, previous 400-180 (Maintenance of Pay was deleted; 95-17-084 filed 8/21/95, effective 9/21/95]

Any person who owns or is in control of a plant, building, structure, establishment, process, or equipment may apply to the Authority for a variance from provisions of ((~~this chapter~~)) SWAPCA regulations governing the quality, nature, duration, or extent of discharges of air contaminants in accordance with the provisions of RCW 70.94.181.

(1) Jurisdiction. Sources in any area over which the Authority has jurisdiction shall make application to the Authority. Variances to state rules shall require approval of Ecology prior to being issued by the Authority. The Board of Directors may grant a variance only after public involvement per SWAPCA 400-171.

(2) Full faith and credit. Variances granted in compliance with state and federal laws by the Authority for sources under its jurisdiction shall be accepted as variances to this regulation.

(3) EPA concurrence. No variance or renewal shall be construed to set aside or delay any requirements of the Federal Clean Air Act except with the approval and written concurrence of the USEPA.

AMENDATORY SECTION

SWAPCA 400-230 Regulatory Actions & Civil Penalties

[Statutory Authority: Chapter 70.94.141 RCW, 70.94.211 RCW, 70.94.331 RCW, 70.94.332 RCW, 70.94.425 RCW, 70.94.431, and 70.94.435 RCW. Original Board adoption 12/17/68 (Regulation 1 Sec 2 & 3); Amended by Board renumbered to 400-130 12/18/79; Amended by Board renumbered to 400-200 4/17/84; Amended by Board 12/16/86; Amended by Board 1/21/92, 92-04-030 filed 1/28/92; 93-21-005 filed 10/7/93, effective 11/8/93; 95-17-084 filed 8/21/95, effective 9/21/95]

(1) The Authority shall have the power to issue such orders as necessary to effectuate the purpose of RCW 70.94 as provided in, including but not limited to: RCW 70.94.141, RCW 70.94.152, RCW 70.94.153, and RCW 70.94.332. The Authority may issue orders for establishing limits and controls for sources of emissions to the ambient air or otherwise controlling activities that may violate any ambient air quality regulations, including but not limited to the following:

(a) Order of Approval. An Order of Approval may be issued by the Authority to provide approval for a Notice of Construction application. An Order of Approval shall contain the following, as appropriate: reference to applicable regulations, emissions limitations, control and process equipment operating conditions and limits, testing requirements, monitoring and reporting requirements, and other conditions considered necessary by the Authority. An Order of Approval which constitutes the final determination of the Authority, shall be issued within sixty (60) calendar days of a complete application or for those projects subject to public notice, as promptly as possible after the 30 calendar day public notice requirements have been satisfied. An Order of Approval may not identify all applicable regulations. All Orders of Approval may be subject to the public notice and comment procedures set forth in SWAPCA 400-171(2), (3), and (4).

(b) Order of Denial. An Order of Denial may be issued by the Authority in response to a Notice of Construction application that is incomplete, not feasible, proposes inadequate control technology, or otherwise would result in violation of any ambient air quality regulation, control technology requirement, or emission standards in the area in which the equipment would be located and operated. All Orders of Denial shall be subject to the public notice and comment procedures set forth in SWAPCA 400-171(2), (3), and (4).

(c) Order of Violation. An Order of Violation may be issued by the Authority to document specific regulation(s) alleged to be violated and establish the facts surrounding a violation. An Order of Violation may be prepared by the Authority only after formal written notice has been served on the source as provided in (2) below. The Order of Violation shall not be subject to the public notice and comment period set forth in SWAPCA 400-171.

(d) Order of Prevention. An Order of Prevention may be issued by the Authority to a source to prevent installation or construction of an emission unit, performance of an activity, or actions that may otherwise endanger public health that are on site, in the process of being installed, or have been installed, constructed or operated without prior Authority review and approval or actions are being conducted in addition to a previous Authority approval without prior approval. An Order of Prevention shall not be subject to the public notice and comment period set forth in SWAPCA 400-171.

(e) Consent Order. A Consent Order may be issued by the Authority to establish emission limits, operation and maintenance limits or controls, monitoring or reporting requirements, testing requirements, or other limits or controls as necessary that are determined by the Authority to be necessary. Actions identified in a Consent Order may be necessary to demonstrate compliance with applicable regulations, provide measures whereby a source may take the necessary steps to achieve compliance, establish a schedule for activities, or provide other information that the Control Officer deems appropriate. The Consent Order shall be agreed to and signed by an appropriate officer of the company or source for which the Consent Order is prepared and the Control Officer, or designee, of the Authority. Installation, construction, modification or operation of a source shall be subject to the New Source Review requirements of SWAPCA 400-110. A Consent Order shall not be subject to the public notice and comment period set forth in SWAPCA 400-171 at the discretion of the Control Officer.

(f) Compliance Schedule Order. A Compliance Schedule Order may be issued by the Authority to a source to identify specific actions that must be implemented to establish, maintain, and/or demonstrate compliance with applicable regulations and identify the schedule by which these actions must be completed. All Compliance Schedule Orders shall be subject to the public notice and comment period set forth in SWAPCA 400-171 (2), (3), and (4). Refer to SWAPCA 400-161 for further guidance.

(g) Order of Discontinuance. The Authority may issue an Order of Discontinuance for any source that has discontinued operations and/or has not maintained their source registration for emission units. (Refer to SWAPCA 400-100 (2)(d)). An Order of Discontinuance may also be issued to a source that continues to operate in violation of applicable regulations and requirements. Such issuance may require that the source cease operations that result in emissions to the ambient air that are in violation of applicable regulatory orders, requirements and regulations.

(i) Any source that fails to maintain registration fees (i.e., payment of registration fees by ((~~July 31~~)) June 30 of each year), may be issued an Order of Discontinuance. The Order of Discontinuance shall identify the source location and emission units and identify the most current registration activity.

(ii) The Order of Discontinuance shall provide for discontinuance of operations at that source or facility and all previous authorizations, orders, agreements or stipulations shall be superseded, directly or indirectly, by the Order of Discontinuance without specific identification in the Order of Discontinuance.

(iii) The Order of Discontinuance shall be subject to the public notice and comment procedures set forth in SWAPCA 400-171(2), (3), and (4).

(iv) For sources that have ceased doing business in SWAPCA jurisdiction, or the state of Washington, the Authority shall make a reasonable effort to establish contact with the source. If the Authority is unable to establish contact with the source, the Authority shall issue an Order of Discontinuance via certified mail, return receipt requested, to the last known address. Lack of response by the source or return of the notification by the US Postal Service shall be considered de facto evidence that the source has discontinued operations.

(v) The source shall have 30 calendar days from the date of the final regulatory order after public notice in which to pay past due and current registration fees. If the source fails to pay current registration fees, the source or facility shall be considered discontinued and shall be required to submit a Notice of Construction application under the New Source Review procedures of SWAPCA 400-110 prior to resuming or restarting operations.

(vi) Facilities that terminate operations and discontinue paying registration fees, and are later sold with the intent of restart, in whole or in part, shall be subject to the New Source Review requirements of SWAPCA 400-110.

(vii) Sources that continue to operate in violation of established regulatory orders and regulations, the Authority may issue an Order of Discontinuance that is effective immediately.

(h) Corrective Action Order. The Authority may issue a Corrective Action Order to any source within its jurisdiction, including an unregistered source, to provide measures to correct or rectify a situation that has immediate or eminent threat to person(s) or the public or that may be in violation or have the potential of being in violation of federal, state and local regulations or may pose a threat to the public health, welfare or enjoyment of personal or public property. The Corrective Action Order may specify specific actions that must be implemented to demonstrate compliance with applicable regulations and identify dates by which these actions must be completed. All actions and dates identified in the Corrective Action Order shall be fully enforceable. Corrective Action Orders shall be issued to correct immediate problems. Corrective Action Orders shall not be subject to the public notice and comment period set forth in SWAPCA 400-171.

(i) Administrative Order. An Administrative Order may be issued to a source by the Authority to provide for implementation of items not addressed above, that are identified by the Control Officer. An Administrative Order may contain emission limits, operating and maintenance limitations and actions, schedules, resolutions by the Board of Directors, provide for establishing attainment or nonattainment boundaries, establish working relationships with other regulatory agencies, establish authority for enforcement of identified actions, and other activities identified by the Authority. All Administrative Orders shall be subject to the public notice and comment procedures set forth in SWAPCA 400-171(2), (3), and (4).

(j) Resolutions. A Resolution may be issued by the Authority as a means to document or record a Board of Directors decision, authorize or approve budget transactions, establish policies, or other actions as determined by the Authority. Resolutions shall not be subject to the public notice and comment procedures set forth in SWAPCA 400-171.

(2) The Authority may take any of the following regulatory actions to enforce its regulations to meet the provisions of RCW 43.21B.300 which is incorporated herein by reference.

(a) Enforcement Actions by the Authority--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, the Authority shall cause written notice to be served upon the alleged violator or violators. The notice shall specify the provision of this regulation, or the rule, regulation, regulatory order or permit requirement 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 Authority may require that the alleged violator or violators appear before it for the purpose of providing the Authority information pertaining to the violation or the charges complained of. Every Notice of Violation shall offer to the alleged violator an opportunity to meet with the Authority prior to the commencement of enforcement action. Enforcement action may be commenced by the Authority by issuance of a regulatory order as provided in SWAPCA 400-230(1).

(b) Civil Penalties.

(i) In addition to or as an alternate to any other penalty provided by law, any person who violates any of the provisions of Chapter 70.94 or 70.120 RCW, or any of the rules in force under such chapters may incur a civil penalty in an amount as set forth in RCW 70.94.431. Each such violation shall be a separate and distinct offense, and in case of 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 regulation shall be liable for a civil penalty as set forth by RCW 70.94.431 for each day of continued noncompliance.

(ii) 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 amounts established in RCW 70.94.431 may be increased annually to account for inflation as determined by the State Office of the Economic and Revenue Forecast Council.

(iii) 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 43.21B.300. Section 113(e)(2) of the 1990 Clean Air Act Amendments provides that the number of "days of violation" is to be counted beginning on the first proven day of violation and continuing every day until the violator demonstrates that it achieved continuous compliance, unless the violator can prove by preponderance of the evidence that there were intervening days on which no violation occurred. This definition applies to all civil and administrative penalties.

(iv) All penalties recovered under this section by the Authority, shall be paid into the treasury of the Authority and credited to its funds.

(v) To secure the penalty incurred under this section, the Authority shall have a lien on any equipment used or operated in violation of its regulations which shall be enforced as provided in RCW 60.36.050. The Authority shall also be authorized to utilize a collection agency for nonpayment of penalties and fees.

(vi) In addition to other penalties provided by this regulation, persons knowingly under-reporting emissions 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 Control Officer may accept an assurance of discontinuance as provided in RCW 70.94.435 of any act or practice deemed in violation of this regulation as written and certified to by the source. Any such assurance shall specify a time limit during which discontinuance or corrective action is to be accomplished. Failure to perform the terms of any such assurance shall constitute prima facie proof of a violation of its regulations or any order issued thereunder 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 its regulations, the Control Officer, 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 Authority may issue such orders as authorized by SWAPCA 435 via Chapter 70.94 RCW, whenever an air pollution episode forecast is declared.

(6) Compliance Orders. The Authority may issue a compliance order in conjunction with a Notice of Violation or when the Control Officer has reason to believe a regulation is being violated, or may be violated. 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 and completed.

AMENDATORY SECTION

SWAPCA 400-250 Appeals

[Statutory Authority: Chapter 70.94.141 RCW, 70.94.221 RCW, and 70.94.331 RCW. Original Board adoption 12/18/79 as 400-140; Amended by Board renumbered to 400-220 4/17/84; renumbered to 400-250 93-21-005, filed 10/7/93, effective 11/8/93; 95-17-084 filed 8/21/95, effective 9/21/95]

(1) Any decision or regulatory order issued by the Authority may be appealed to the Board of Directors as provided herein or appealed directly to the Pollution Control Hearings Board as provided by RCW 43.21B and WAC 371-08. In addition, Orders of Approval and permits issued in accordance with the PSD program may be appealed to the EPA Environmental Appeals Board, to the extent authorized in 40 CFR 124. If appealed to the Board of Directors, the procedure shall be as follows:

(a) The decision, Notice of Violation, or Order issued by the Control Officer shall become final unless, not later than 15 calendar days after the date the Order is served upon the owner or applicant, the owner or applicant petitions the Control Officer for reconsideration, with reasons for the reconsideration. If the Control Officer refuses to reconsider, the Control Officer shall so notify the owner or applicant in writing, giving reasons for the decision. Such ruling on the petition shall become final unless not later than 15 calendar days after such notice of refusal is served, the owner or applicant appeals to the Board setting forth the reasons for the appeal.

(b) The Control Officer may reverse or modify the Order and issue such an Order in replacement thereof as deemed proper. Such Order also may be appealed to the Board of Directors as in (a) above.

(c) Any failure of the Control Officer to act upon a petition for reconsideration 15 calendar days after the petition is delivered to the Authority, shall be considered as a refusal to reconsider.

(d) In lieu of a petition for reconsideration, the owner or applicant may appeal directly to the Board of Directors within the time specified in (a) above.

(2) The Board shall promptly hear and consider all appeals after providing reasonable notice to the appellant. The Board shall, within 30 calendar days of the hearing sustain, reverse or modify the Order of the Control Officer as it deems proper. Such ruling of the Board shall be communicated to the appellant in writing and the appellant if aggrieved, may appeal de novo to the Pollution Control Hearings Board as provided in RCW 43.21B.((~~120~~)) 230 and WAC 371-08.

(3) It is the intent of the Board in establishing this regulation concerning appeals to provide for a method of resolving issues at the Authority level. Consequently, Decisions and Orders of the Control Officer on compliance, new source review, or any other matter regulated herein except violations shall not be considered as commencing any appeal period for appeals to the Pollution Control Hearings Board. Such appeal period shall commence only when the final Order is issued by the Board of Directors and served upon the person aggrieved as provided in RCW 43.21B.120.

(4) Nothing contained herein shall be construed as denying the exclusive jurisdiction of the Pollution Control Hearings Board on violations as provided by RCW 43.21B.((~~120.~~))

AMENDATORY SECTION

SWAPCA 400-280 Powers of Authority

[Statutory Authority: Chapter 70.94.141 RCW and 70.94.331 RCW. 95-17-084 filed 8/21/95, effective 9/21/95]

In addition to any other powers vested in the Authority, consistent with RCW 70.94.141, the Authority shall have the power to:

(1) Adopt, amend, and repeal its own rules and regulations, implementing RCW 70.94 and consistent with it, after consideration at a public hearing held in accordance with RCW 42.30. Rules and regulations shall also be adopted in accordance with the notice and adoption procedures set forth in RCW 34.05.320, those provisions of RCW 34.05.325 that are not in conflict with RCW 42.30, and with the procedures of RCW 34.05.340, 34.05.355 through 34.05.380, and with RCW 34.08, except that rules shall not be published in the Washington Administrative Code. Judicial review of rules adopted by the Authority shall be in accordance with Part V of RCW 34.05.

(2) Hold hearings relating to any aspect of or matter in the administration of RCW 70.94 not prohibited by the provisions of Chapter 62, Laws of 1970 ex. sess. and in connection therewith issue subpoenas to compel the attendance of witnesses and the production of evidence, administer oaths and take the testimony of any person under oath.

(3) Issue such orders as may be necessary to effectuate RCW 70.94 and enforce the same by all appropriate administrative and judicial proceedings subject to the rights of appeal as provided in Chapter 62, Laws of 1970 ex. sess.

(4) Require access to records, books, files and other information specific to the control, recovery or release of air contaminants into the atmosphere.

(5) Secure necessary scientific, technical, administrative and operational services, including laboratory facilities, by contract, or otherwise.

(6) Prepare and develop a comprehensive plan or plans for the prevention, abatement and control of air pollution within the jurisdiction of the Authority.

(7) Encourage voluntary cooperation by persons or affected groups to achieve the purposes of RCW 70.94.

(8) Encourage and conduct studies, investigations and research relating to air pollution and its causes, effects, prevention, abatement and control.

(9) Collect and disseminate information and conduct educational and training programs relating to air pollution.

(10) Advise, consult, cooperate and contract with agencies and departments and the educational institutions of the state, other political subdivisions, industries, other states, interstate or interlocal agencies, and the United States government, and with interested persons or groups.

(11) Consult, upon request, with any person proposing to construct, install, or otherwise acquire an air contaminant source or device or system, concerning the efficacy of such device or system, or the air pollution problems which may be related to the source, device or system. Nothing in any such consultation shall be construed to relieve any person from compliance with RCW 70.94, ordinances, resolutions, rules and regulations in force pursuant thereto, or any other provision of law.

(12) Accept, receive, disburse and administer grants or other funds or gifts from any source, including public and private agencies and the United States government for the purpose of carrying out any of the functions of RCW 70.94.

except:

(13) SWAPCA may not hold adjudicative proceedings pursuant to the Administrative Procedures Act (RCW 34.05). Such hearings shall be held by the Pollution Control Hearings Board as provided at RCW 43.21B.240.

NEW SECTION

APPENDIX A

SWAPCA METHOD 9

VISUAL OPACITY DETERMINATION METHOD

1. Principle

The opacity of emissions from stationary sources is determined visually by a qualified observer.

2. Procedure

The observer must be certified in accordance with the provisions of Section 3 of 40 CFR Part 60, Appendix A, Method 9, as in effect on July 1, 1998.

The observer shall stand at a distance sufficient to provide a clear view of the emissions with the sun oriented in the 140 sector to his back. Consistent with maintaining the above requirement, the observer shall, as much as possible, make his observations from a position such that his line of vision is approximately perpendicular to the plume direction, and when observing opacity of emissions from rectangular outlets (e.g., roof monitors, open baghouses, noncircular stacks), approximately perpendicular to the longer axis of the outlet. The observer's line of sight should not include more than one plume at a time when multiple stacks are involved, and in any case, the observer should make his observations with his line of sight perpendicular to the longer axis of such a set of multiple stacks (e.g., stub stacks on baghouses).

The observer shall record the name of the plant, emission location, type of facility, observer's name and affiliation, and the date on a field data sheet. The time, estimated distance to the emission location, approximate wind direction, estimated wind speed, description of the sky condition (presence and color of clouds), and plume background are recorded on a field data sheet at the time opacity readings are initiated and completed.

Opacity observations shall be made at the point of greatest opacity in the portion of the plume where condensed water vapor is not present. The observer shall not look continuously at the plume, but instead shall observe the plume momentarily at 15 second intervals.

When condensed water vapor is present within the plume as it emerges from the emission outlet, opacity observations shall be made beyond the point in the plume at which condensed water vapor is no longer visible. When water vapor in the plume condenses and becomes visible at a distinct distance from the emission outlet, the opacity of emissions should be evaluated at the emission outlet prior to the condensation of water vapor and the formation of the steam plume.

Opacity observations shall be recorded to the nearest 5 percent at 15 second intervals on an observational record sheet. Each momentary observation recorded shall be deemed to represent the average opacity of emissions for a 15 second period.

3. Analysis

The opacity of the plume is determined by individual visual observations. Opacity shall be reported as the range of values observed during any consecutive 60 minutes. The opacity standard is exceeded if there are more than 12 observations, during any consecutive 60 minute period, for which an opacity greater than the standard is recorded.

4. References

Federal Register, Vol. 36, No. 247, page 24895, December 23, 1971.

"Criteria for Smoke and Opacity Training School 1970 - 1971" Oregon-Washington Air quality Committee."

"Guidelines for Evaluation of Visible Emissions" EPA 340/1-75-007."

Notes: 1) The difference between the SWAPCA Method 9 and WDOE Method 9 or WDOE Method 9A is the SWAPCA method does not recommend that the observer make note of the ambient relative humidity, ambient temperature, the point in the plume that the observations were made, the estimated depth of the plume at the point of observation, and the color and condition of the plume. In addition, the SWAPCA method does not recommend that pictures be taken.

2) The difference between the SWAPCA Method 9 and EPA Method 9 is in the data reduction section. The SWAPCA method establishes a three minute period in any one hour period where opacity can not exceed an opacity limit. For the SWAPCA method, 13 readings in a 1 hour period, or less, above the established opacity limit, no matter how much, constitutes a violation. The EPA method is an arithmetic average of any 24 consecutive readings at 15 second intervals. These values are averaged and this average value can not exceed the established opacity limit.

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