Original Notice.

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

Title of Rule: Amending Sections 3.03, 3.04, 8.04, 9.03, 9.11, and 9.15 of Regulation I; and repealing Section 9.12 of Regulation I.

Purpose: Exempt obscurants during military training exercises from agency's opacity standard; specify method used by the agency to determine if odors are sufficient to constitute a nuisance; establish a process for determining if appropriate control technology is being used by existing sources; and clarify agency's dust control requirements.

Other Identifying Information: Section 3.03 - General Regulatory Orders; 3.04 - Reasonably Available Control Technology; 8.04 - General Conditions for Outdoor Fires; 9.03 - Emission of Air Contaminant: Visual Standard; 9.11 - Emission of Air Contaminant: Detriment to Person or Property; 9.12 - Odor and Nuisance Control Measures; 9.15 Fugitive Dust Control Measures.

Statutory Authority for Adoption: Chapter 70.94 RCW.

Statute Being Implemented: RCW 70.94.141.

Summary: Section 3.03 would be amended to include the Regulatory Order fees presently in Section 3.04. Section 3.04 would be amended to include a Reasonably Available Control Technology (RACT) requirement and a process for determining RACT.

Section 9.03 would be amended to include exemptions for military training exercises and outdoor fires.

Section 9.11 would be amended to include the method used to determine whether odors are sufficient to constitute a nuisance. Section 9.12 would be repealed.

Section 9.15 would be amended as follows:

(a) The existing provision requiring BACT would be replaced with a provision requiring reasonable precautions and a list of precautions to be employed.

(b) The existing provision pertaining to spillage and track-out of fugitive dust from motor vehicles would be listed as a reasonable precaution.

(c) The existing provision prohibiting fugitive dust emissions from refuse burning and fuel burning equipment, and equipment used in a manufacturing process would be repealed.

(d) The existing provision regarding detriment to person or property would be replaced with a provision stating that compliance with Section 9.15 does not relieve any person from the responsibility to comply with Section 9.11.

Reasons Supporting Proposal: The agency needs to be able to resolve complaints (e.g., odor) about existing sources. Military training operations are essential for national defense. The public needs to know how the agency enforces odor nuisance cases. Sources need to understand the agency's dust control requirements. Prima facie evidence statements need to have legal foundation. Operating permit sources need to be able to certify compliance.

Name of Agency Personnel Responsible for Drafting: Gerry Pade, 110 Union Street, #500, Seattle, WA 98101, (206) 689-4065; 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 not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: The agency is proposing to revise its nuisance regulations to specify the method used to determine whether odors are sufficient to constitute a nuisance and to establish a process for determining whether existing sources are employing the appropriate control technology. Regulation I, Sections 9.12 and 9.15 presently require Best Available Control Technology (BACT) for odor and dust, respectively. However, the only process for determining BACT is a Notice of Construction and the statutory authority for requiring a Notice of Construction is limited to new or modified sources. The agency is also proposing to add an exemption from its opacity standard for certain military training exercises.

Proposal Changes the Following Existing Rules: The amendments to Section 3.04(a) come directly from RCW 70.94.154(1). The amendments to Section 3.04(b) were taken from Section 3.05, Investigations by the Control Officer, which comes directly from RCW 70.94.200. The proposed addition of Section 3.04(c) comes directly from RCW 70.94.154 (2) and (3). The proposed addition of Section 3.04(d) comes directly from RCW 70.94.154(7). The proposed addition of Section 3.04(e) comes directly from WAC 173-400-040.

The amendments to Section 3.03 relocate the existing regulatory order fees from Section 3.04. The fee would not change. However, the wording would change to reflect that the board may unilaterally impose a regulatory order.

The amendment to Section 9.03 exempting outdoor fires comes directly from Section 8.04. The exemption for military training obscurants is new.

The proposed amendments to Section 9.15 come directly from WAC 173-400-040 (8)(a), with some elaboration on what 'reasonable precautions' are.

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 March 11, 1999, at 9:00 a.m.

Assistance for Persons with Disabilities: Contact Agency Receptionist, (206) 689-4010, by March 4, 1999, 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 March 1, 1999.

Date of Intended Adoption: March 11, 1999.

February 2, 1999

Gerald S. Pade

Air Pollution Engineer

REGULATION I SECTION 3.03 GENERAL REGULATORY ORDERS

(a) Purpose. The Board may, by regulatory order, apply to a specific source or sources any applicable provision of chapter 70.94 RCW or the rules adopted thereunder.

(b) Public Involvement Process. The Board may issue a regulatory order after the following public involvement process has been completed:

(1) Public notice of the proposed order shall be published in a newspaper of general circulation in the area where the source that is the subject of the order is located. Notice shall also be sent to the U.S. Environmental Protection Agency Regional Administrator. The public notice shall include, at a minimum, the following information:

(A) The name and address of the owner or operator and the source;

(B) A brief description of the purpose of the proposed order and the requirements included in the proposed order;

(C) The deadline for submitting written comments to PSAPCA; and

(D) The opportunity for a public hearing if PSAPCA determines that there is significant public interest in the proposed order.

(2) The initial public comment period shall be at least 30 days.

(3) During the initial 30-day public comment period, any person may request a public hearing be held. Any such request shall be submitted in writing to the Agency, shall indicate the interest of the entity filing it, and describe why a hearing is warranted. The Agency may, at its discretion, hold a public hearing if it determines significant public interest exists. Any such hearing shall be held before a hearing officer and upon such notice and at a time and place as the Agency deems reasonable. The hearing officer shall hear testimony at the public hearing and prepare a written summary of the testimony received at the hearing. The Agency shall provide at least 30 days prior notice of any hearing. If a public hearing is held, the public comment period shall extend through the hearing date.

(c) Board Action. The Board shall only issue an order under this section after:

(1) The public comment period has ended;

(2) Any public hearing scheduled has been held; and

(3) The Board has considered all information and data related to the proposed order received by PSAPCA, including all written comments received and any summary of testimony prepared by the hearing officer.

The Board shall take action on a proposed order at a Board meeting. Unless otherwise ordered by the Board, an order issued under this section shall be effective on the date the Board approves the order.

(d) Appeals. Orders issued by the Board under this section may be appealed to the Pollution Control Hearings Board pursuant to Section 3.17 of Regulation I and RCW 43.21B.310.

(e) Fees. The Agency shall assess a fee of $1,000.00 to cover the costs of processing and issuing a general regulatory order under this section; and the Agency shall also assess a fee equal to the cost of providing public notice in accordance with Section 3.03(b) of this regulation. These fees shall be due and payable within 30 days of the date of the invoice and shall be deemed delinquent if not fully paid within 90 days of the invoice.

AMENDATORY SECTION

REGULATION I SECTION 3.04 ((GENERAL REGULATORY ORDER FEES)) REASONABLY AVAILABLE CONTROL TECHNOLOGY

(((a) The applicant must pay a fee of $1,000.00 to the Agency when submitting an application for a general regulatory order under Section 3.03 of Regulation I; and

(b) The applicant must pay to the Agency a fee equal to the cost of providing public notice in accordance with Section 3.03(b) of Regulation I.))

(a) It shall be unlawful for any person to cause or allow the operation of any source unless reasonably available control technology (RACT), as defined in Section 1.07 of this regulation, is employed.

(b) For the purpose of determining compliance with this requirement, the Control Officer or a duly authorized representative shall have the authority to perform a RACT analysis of a source or to order the owner or operator to have a RACT analysis performed and to submit the results to the Agency.

(c) Source-specific RACT determinations, as described in Section 3.04(b) of this regulation, may be performed under any of the following circumstances:

(1) For replacement of existing control equipment under Article 6 of this regulation;

(2) When required by the federal Clean Air Act;

(3) For sources in source categories containing fewer than 3 sources;

(4) When an air quality problem, for which the source is a contributor, justifies a source-specific RACT determination prior to development of a categorical RACT rule; or

(5) When a source-specific RACT determination is needed to address either specific air quality problems, for which the source is a significant contributor, or source-specific economic concerns.

(d) In the event that the Agency performs a RACT analysis of a source, the Agency shall assess a fee of $5,000.00 from that source to cover the costs of performing the analysis. This fee shall be due and payable within 30 days of the date of the invoice and shall be deemed delinquent if not fully paid within 90 days of the invoice.

(e) Where current controls are determined to be less than RACT, the Agency shall define RACT for that source or source category and issue a rule or a regulatory order under Section 3.03 of this regulation requiring the installation of RACT.

AMENDATORY SECTION

REGULATION I SECTION 8.04 GENERAL CONDITIONS FOR OUTDOOR FIRES

(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 the Uniform Fire Code.

AMENDATORY SECTION

REGULATION I SECTION 9.03 EMISSION OF AIR CONTAMINANT: VISUAL STANDARD

(a) It shall be unlawful for any person to cause or allow the emission of any air contaminant for a period or periods aggregating more than 3 minutes in any 1 hour, which is:

(1) Darker in shade than that designated as No. 1 (20% density) on the Ringelmann Chart, as published by the United States Bureau of Mines; or

(2) Of such opacity as to obscure an observer's view to a degree equal to or greater than does smoke described in Section 9.03 (a)(1).

(b) The density or opacity of an air contaminant shall be measured at the point of its emission, except when the point of emission cannot be readily observed, it may be measured at an observable point of the plume nearest the point of emission.

(c) This section shall not apply when the presence of uncombined water is the only reason for the failure of the emission to meet the requirements of this section.

(d) This section shall not apply to solid fuel burning devices, permitted fire training facilities, permitted obscurant usage during military training operations, outdoor fires, motor vehicles when operated on public roads, aircraft, or equipment subject to Section 9.04.

(e) This section shall not apply to equipment with an alternate opacity standard issued under Section 3.03 or Section 6.07 that is based upon a correlation with the particulate concentration and that accurately indicates a violation of the applicable particulate emission standards in Section 9.09.

AMENDATORY SECTION

REGULATION I SECTION 9.11 EMISSION OF AIR CONTAMINANT: DETRIMENT TO PERSON OR PROPERTY

(a) It shall be unlawful for any person to cause or allow the emission of any air contaminant in sufficient quantities and of such characteristics and duration as is, or is likely to be, injurious to human health, plant or animal life, or property, or which unreasonably interferes with enjoyment of life and property.

(b) ((A Notice of Violation of this section may be issued based upon an affidavit from the person making the complaint and verification by the Control Officer or a duly authorized representative.)) With respect to odor, the Agency may take enforcement action under this section if the Control Officer or a duly authorized representative has documented all of the following:

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

level 0 - no odor detected;

level 1 - odor barely detected;

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

level 3 - odor is objectionable enough or strong enough to cause attempts at avoidance; and

level 4 - odor is so strong that a person does not want to remain present;

(2) An affidavit from a person making a complaint that demonstrates that they have experienced air contaminant emissions in sufficient quantities and of such characteristics and duration so as to unreasonably interfere with their enjoyment of life and property; and

(3) The source of the odor.

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

REPEALER

REGULATION I SECTION 9.12 ODOR AND NUISANCE CONTROL MEASURES

AMENDATORY SECTION

REGULATION I SECTION 9.15 FUGITIVE DUST((: EMISSION STANDARD)) CONTROL MEASURES

(((a) It shall be unlawful for any person to cause or allow the emission of fugitive dust unless such person uses the best available control technology to control the emissions.

(b) It shall be unlawful for any person to cause or allow a vehicle to be operated on a paved roadway open to the public:

(1) Unless such vehicle is so constructed or loaded as to prevent any of its load from dropping, sifting, leaking, or otherwise escaping therefrom, except that sand may be dropped for the purpose of securing traction, and except road construction and maintenance by public agencies.

(2) With a load of dirt, sand, gravel, or other material susceptible to being dropped, spilled, or otherwise escaping therefrom unless it is covered or has adequate freeboard so as to prevent spillage.

(3) With deposits of mud, dirt, or other debris on the vehicle's body, fenders, frame, undercarriage, wheels, or tires.

Deposits of particulate matter on a paved roadway open to the public shall be prima facie evidence of a violation of Section 9.15(b).

(c) It shall be unlawful for any person to cause or allow the emission of fugitive dust from any refuse burning equipment, fuel burning equipment, equipment used in a manufacturing process, or control equipment.

(d) It shall be unlawful for any person to cause or allow the emission of fugitive dust in sufficient quantities and of such characteristics and duration as is, or is likely to be, injurious to human health, plant or animal life, or property, or which unreasonably interferes with enjoyment of life and property.))

(a) It shall be unlawful for any person to cause or allow visible emissions of fugitive dust unless reasonable precautions are employed to minimize the emissions. Reasonable precautions include, but are not limited to, the following:

(1) The use of control equipment, enclosures, and wet (or chemical) suppression techniques, as practical, and curtailment during high winds;

(2) Surfacing roadways and parking areas with asphalt, concrete, or gravel;

(3) Treating temporary, low-traffic areas (e.g., construction sites) with water or chemical stabilizers, reducing vehicle speeds, constructing pavement or rip rap exit aprons, and cleaning vehicle undercarriages before they exit to prevent the track-out of mud or dirt onto paved public roadways; and

(4) Covering or wetting truck loads or allowing adequate freeboard to prevent the escape of dust-bearing materials.

(b) Compliance with the provisions of this section shall not relieve any person from the responsibility to comply with Section 9.11 of this regulation.

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