WSR 98-18-087

PROPOSED RULES

PUGET SOUND AIR

POLLUTION CONTROL AGENCY

[Filed September 2, 1998, 9:27 a.m.]

Original Notice.

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

Title of Rule: Amend Regulation I, Sections 3.06, 3.17, 8.01, 8.02, 8.03, 8.04, 8.06, and 9.16.

Purpose: Add the ability to use credible evidence in enforcement; clarify that all orders may be appealed to the Pollution Control Hearings Board; add definitions; include a new burn ban trigger; add amendments made by the legislature to authorize use of petroleum products for fire training; allow fire districts or county councils to add no-burn areas outside urban growth areas; and make spray coating rule more flexible and effective.

Other Identifying Information: Section 3.06 - Credible Evidence; 3.17 - Appeal of Orders; 8.01 - Definitions; 8.02 -Prohibited Outdoor Fires; 8.03 - Residential and Land-Clearing Fires; 8.04 - General Conditions; 8.06 - Allowable Outdoor Fires; 9.16 - Spray Coating Operations.

Statutory Authority for Adoption: Chapter 70.94 RCW.

Statute Being Implemented: RCW 70.94.141.

Summary: The proposal adds the ability to use credible evidence in enforcement; clarifies that all orders may be appealed; moves definitions to better location; adds new burn ban trigger; adds use of petroleum products for fire training; allows fire districts/county councils to add no-burn areas; and makes spray coating rule more effective.

Reasons Supporting Proposal: To add EPA-required language regarding use of credible evidence; to clarify appeals; to move definitions for ease of use; to add the new burn ban trigger; to add legislature-authorized use of petroleum products for fire training; to add provisions for fire districts and county councils to add no-burn areas that are outside the urban growth areas; to make spray coating rule more effective/flexible.

Name of Agency Personnel Responsible for Drafting: Jim Nolan, 110 Union Street, #500, Seattle, WA 98101, (206) 689-4053; Implementation: Dave Kircher, 110 Union Street, #500, Seattle, WA 98101, (206) 689-4050; and Enforcement: Neal Shulman, 110 Union Street, #500, Seattle, WA 98101, (206) 689-4078.

Name of Proponent: Puget Sound Air Pollution Control Agency, governmental.

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

Rule is necessary because of federal law, [Credible evidence rule text, Part 51, 52, 60, and 61.]

Explanation of Rule, its Purpose, and Anticipated Effects: This proposal adds the ability to use credible evidence in enforcement; clarifies that all orders may be appealed to the Pollution Control Hearings Board; moves definitions to more convenient location; includes a new burn ban trigger; adds amendments made by the legislature to authorize use of petroleum products for fire training; allows fire districts or county councils to add no-burn areas that are outside the urban growth areas; and makes the spray coating regulation more flexible and effective.

Proposal Changes the Following Existing Rules: This proposal will add the ability to use credible evidence in enforcement; clarify that all orders may be appealed to the Pollution Control Hearings Board; moves definitions to a more convenient location; includes the new burn ban trigger; adds amendments made by the legislature to authorize use of petroleum products for fire training; allows fire districts or county councils to add no-burn areas that are outside the urban growth areas; and makes the spray coating regulation more flexible and effective.

No small business economic impact statement has been prepared under chapter 19.85 RCW. This agency is not subject to the small business economic impact provision of the Administrative Procedure Act.

RCW 34.05.328 does not apply to this rule adoption. Pursuant to RCW 70.94.141(1), RCW 34.05.328 does not apply to this rule adoption.

Hearing Location: Puget Sound Air Pollution Control Agency Offices, 110 Union Street, #500, Seattle, WA 98101, on October 8, 1998, at 9:00 a.m.

Assistance for Persons with Disabilities: Contact Agency Receptionist, (206) 689-4010, by October 1, 1998, TDD (800) 833-6388, or (800) 833-6385 (Braille).

Submit Written Comments to: Dennis McLerran, Puget Sound Air Pollution Control Agency, 110 Union Street, #500, Seattle, WA 98101, fax (206) 343-7522, by September 28, 1998.

Date of Intended Adoption: October 8, 1998.

August 31, 1998

James Nolan

Director - Compliance

NEW SECTION

REGULATION I SECTION 3.06 CREDIBLE EVIDENCE

For the purpose of establishing whether or not a person has violated or is in violation of any provision of chapter 70.94 RCW, any rule enacted pursuant to that chapter, or any permit or order issued thereunder, nothing in this regulation shall preclude the use, including the exclusive use, of any credible evidence or information, relevant to whether a source would have been in compliance with applicable requirements if the appropriate performance or compliance test procedures or methods had been performed.

AMENDATORY SECTION

REGULATION I SECTION 3.17 APPEAL OF ORDERS

(a) Any order of the Board or Control Officer ((issued pursuant to Section 3.09 of Regulation I)) may be appealed to the Pollution Control Hearings Board if the appeal is filed with the Hearings Board and served on the Agency within 30 days after receipt of the order. This is the exclusive means of appeal of such an order.

(b) The Control Officer may stay the effectiveness of an order during the pendency of such an appeal. At any time during the pendency of such an appeal of such an order to the Hearings Board, the appellant may apply to the Hearings Board pursuant to ((C))chapter 43.21B RCW and ((C))chapter 371-08 WAC for a stay of the order or for the removal thereof.

(c) Upon failure to comply with any final order of the Board or Control Officer, the attorney for the Agency, upon request of the Board or Control Officer, may bring an action in the superior court of the county where the violation occurred or the potential violation is about to occur to obtain such relief as necessary.

NEW SECTION

REGULATION I SECTION 8.01 DEFINITIONS

The following definitions apply to this article:

(a) land-clearing fire means an outdoor fire consisting of residue of a natural character such as trees, stumps, shrubbery, or other natural vegetation arising from land-clearing projects and burned on the lands where the residue originated.

(b) outdoor fire means the combustion of material in the open or in a container with no provision for control of the combustion or control of the emissions from the combustion.

(c) period of impaired air quality means a condition declared by the Control Officer when particulates 10 microns and smaller in diameter are at an ambient level of 60 micrograms per cubic meter measured on a 24-hour average or when carbon monoxide is at an ambient level of 8 parts of contaminant per million parts of air by volume measured on an 8-hour average.

(d) residential fire means an outdoor fire no larger than 4 feet in diameter and 3 feet in height consisting of leaves, clippings, prunings, and other yard and gardening refuse originating on lands immediately adjacent and in close proximity to a human dwelling and burned on such lands by the property owner or his or her designee.

AMENDATORY SECTION

REGULATION I SECTION 8.02 PROHIBITED OUTDOOR FIRES ((- PROHIBITED TYPES))

It shall be unlawful for any person to cause or allow any outdoor fire:

(a) During any ((stage of an air pollution episode or)) period of impaired air quality; or

(b) Containing garbage, dead animals, asphalt, petroleum products (except for training as provided in Sections 8.07 and 8.08), paints, rubber products, plastics or any substance other than natural vegetation which normally emits dense smoke or obnoxious odors.((; or

(c) Other than the following types:

(1) Fires for instruction in the methods of fighting fires, provided the person(s) conducting the training fire complies with the requirements of Section 8.07 or 8.08 of this regulation;

(2) Fires associated with commercial agricultural operations, provided prior written approval has been issued by the Control Officer in accordance with Section 8.05 of this regulation;

(3) Fires for abating a forest fire hazard, to prevent a hazard, for instruction of public officials in methods of forest fire fighting, any silvicultural operation to improve forest lands, and silvicultural burning used to improve or maintain fire dependent ecosystems for rare plants or animals within state, federal, and private natural area preserves, natural resource conservation areas, parks, and other wildlife areas, provided prior written approval has been issued by the Washington Department of Natural Resources;

(4) Fires no larger than four feet in diameter and three feet in height consisting of leaves, clippings, prunings, and other yard and gardening refuse originating on lands immediately adjacent and in close proximity to a human dwelling and burned on such lands by the property owner or his or her designee, provided a permit has been issued by a fire protection agency, county, or conservation district;

(5) Fires consisting of residue of a natural character such as trees, stumps, shrubbery or other natural vegetation arising from land clearing projects, provided a permit has been issued by a fire protection agency, county, or conservation district;

(6) Fires consisting solely of charcoal, propane, natural gas, or wood used solely for the preparation of food;

(7) Fires no larger than four feet in diameter and three feet in height for campfires at designated federal, state, county or city parks and recreation areas;

(8) Fires for Indian ceremonies or for the sending of smoke signals if part of a religious ritual;

(9) Fires for abating a fire hazard, provided a fire protection agency or county has determined that no reasonable alternative is available to abate the hazard and prior written approval has been issued to the fire protection agency or county by the Control Officer.))

AMENDATORY SECTION

REGULATION I SECTION 8.03 ((OUTDOOR FIRES - PROHIBITED AREAS)) RESIDENTIAL AND LAND-CLEARING FIRES

(((a) It shall be unlawful for any person to cause or allow any outdoor fire as described in Section 8.02(c)(4) or (5) of this Regulation in any area in which the applicable fire protection agency, county, or conservation district has determined not to issue burning permits for outdoor fires pursuant to RCW 70.94.745, RCW 70.94.750, RCW 70.94.775, and/or RCW 70.94.780.))

(((b))) (a) It shall be unlawful for any person to cause or allow any ((outdoor)) residential or land-clearing fire ((as described in Section 8.02(c)(4) or (5) of this Regulation)) within the Urban Growth Areas as defined by RCW 36.70A.030 for Snohomish, King, and Pierce Counties. In addition, after December 31, 2000, it shall be unlawful for any person to cause or allow any residential or land-clearing fire within the Urban Growth Area as defined by RCW 36.70A.030 for Kitsap County.

(b) It shall be unlawful for any person to cause or allow any residential or land-clearing fire in any area outside the Urban Growth Area where the Board of Fire Commissioners for a fire district or the County Council has adopted an ordinance or resolution requesting that the Agency prohibit residential or land-clearing fires. In adopting such an ordinance or resolution, the Board of Fire Commissioners for a fire district or the County Council should consider the population density in the area and the availability of reasonably economical alternatives to outdoor burning.

(c) Residential and land-clearing fires are allowed in areas other than those described in Sections 8.03 (a) and (b), except that it shall be unlawful for any person to cause or allow any residential or land-clearing fire in any area where the applicable fire district does not issue permits for outdoor fires.

AMENDATORY SECTION

REGULATION I SECTION 8.04 GENERAL CONDITIONS

(a) The provisions of Sections 9.03, 9.05, and 9.15 of Regulation I shall not apply to outdoor fires.

(b) Nothing contained in Article 8 shall be construed to allow outdoor fires in those areas in which open burning is prohibited by laws, ordinances, or regulations of the state or any city, county, or fire district.

(c) Nothing contained in Article 8 shall relieve the applicant from obtaining permits required by any state or local fire protection agency or from compliance with ((Section 11.101 of)) the Uniform Fire Code.

NEW SECTION

REGULATION I SECTION 8.06 ALLOWABLE OUTDOOR FIRES

The following types of outdoor fires are allowed throughout King, Pierce, Kitsap, and Snohomish counties (including Urban Growth Areas), except during periods of impaired air quality:

(a) Fires for abating a forest fire hazard, to prevent a hazard, for instruction of public officials in methods of forest fire fighting, any silvicultural operation to improve forest lands, and silvicultural burning used to improve or maintain fire dependent ecosystems for rare plants or animals within state, federal, and private natural area preserves, natural resource conservation areas, parks, and other wildlife areas, provided prior written approval has been issued by the Washington Department of Natural Resources;

(b) Fires no larger than 4 feet in diameter and 3 feet in height consisting of wood used solely for the preparation of food. (The use of gas or charcoal barbecues is allowed at all times, including periods of impaired air quality.);

(c) Fires no larger than 4 feet in diameter and 3 feet in height for campfires at designated federal, state, county, or city parks and recreation areas;

(d) Fires for Indian ceremonies or for the sending of smoke signals if part of a religious ritual;

(e) Fires for abating a fire hazard or a public health or safety hazard, provided a fire protection agency, city, or county has determined that no reasonable alternative is available to abate the hazard and prior written approval has been issued to the fire protection agency, city, or county by the Control Officer;

(f) Fires for disposing of storm or flood-related natural vegetation, provided a fire protection agency, city, or county has made a determination that no reasonable alternative is available to dispose of the natural vegetation and prior written approval has been issued to the fire protection agency, city, or county by the Control Officer;

(g) Fires associated with commercial agricultural operations, provided prior written approval has been issued by the Control Officer in accordance with Section 8.05 of this regulation; and

(h) Fires for instruction in the methods of fighting fires, provided the person(s) conducting the training fire complies with the requirements of Sections 8.07 and 8.08 of this regulation.

AMENDATORY SECTION

REGULATION I SECTION 9.16 SPRAY COATING OPERATIONS

(a) Applicability. This section applies to spray coating operations at facilities subject to Articles 5, 6, and 7 of Regulation I, where a coating that protects or beautifies the substrate is applied with spray equipment using compressed air, airless, or hydraulic atomization methods. The following activities are exempt from this section:

(1) Application of architectural coatings to stationary structures (e.g., bridges, water towers, buildings, or similar structures);

(2) Aerospace coating operations subject to 40 CFR Part 63, Subpart GG;

(3) Use of high volume, low pressure (HVLP) spray guns with a cup capacity of 8 fluid ounces or less when used to spray-coat less than 9 square feet per day per site and with coatings purchased in containers of 1 quart or less;

(4) Use of air brush spray equipment with 0.5 to 2.0 CFM air flow and a maximum cup capacity of 2 fluid ounces;

(5) Use of non-refillable, hand-held aerosol spray cans with a capacity of 1 quart or less; and

(6) Indoor application of automotive undercoating materials using organic solvents having a flash point in excess of 100F.

(b) General Requirements for Indoor Spray Coating Operations. It shall be unlawful for any person subject to the provisions of this section to cause or allow spray coating inside a structure, or spray coating of motor vehicles or motor vehicle components, unless the spray coating is conducted inside an enclosed spray area. The enclosed spray area shall employ either properly seated, dry filters specifically designed for the spray coating operation, or water-wash curtains with a continuous water curtain to control the overspray. The exhaust from the spray area shall be vented to the atmosphere through an unobstructed vertical exhaust vent, e.g., a butterfly valve.

(c) General Requirements for Outdoor Spray Coating Operations. It shall be unlawful for any person subject to the provisions of this section to cause or allow spray coating outside an enclosed structure unless all of the following measures are employed to prevent odors and overspray:

(1) Effective containment shall be used, e.g., tarping, shrink-wrap, or mobile enclosure;

(2) Spray coating operations shall not be conducted during windy periods that would render containment ineffective;

(3) High transfer efficiency spray equipment that minimizes overspray shall be used, e.g., HVLP, low pressure low volume (LPLV), electrostatic, or air assisted airless; and

(4) Spray coating operations shall be located as far upwind from the nearest neighbor as is practicable.

(d) Alternative Spray Coating Method. PSAPCA may approve an alternative spray coating method pursuant to the provisions of Section 3.23 of Regulation I.

(((a) It shall be unlawful for any person to cause or allow the use of spray equipment to apply any VOC-containing material, including any negligibly reactive compound, unless the operation is conducted inside an enclosed spray area that is registered with the Agency and incorporates either dry filters or water wash curtains to control the overspray or the use of another technique that has received the prior written approval of the Control Officer. The exhaust from the spray area shall be vented to the atmosphere through a vertical stack or through the use of another technique that has received the prior written approval of the Control Officer.

(b) The provisions of Section 9.16 shall not apply to:

(1) the use of hand-held aerosol cans,

(2) touch-up operations,

(3) the coating of marine vessels in dry docks,

(4) the coating of bridges, water towers, buildings or similar structures,

(5) insecticide, pesticide, or fertilizer spray equipment,

(6) the coating of items that cannot be reasonably handled in an enclosed spray area, provided the operation has received the prior written approval of the Control Officer.

(c) The provisions of Section 9.16 shall become effective January 1, 1992.))