PROPOSED RULES
CLEAN AIR AGENCY
Original Notice.
Exempt from preproposal statement of inquiry under RCW 70.94.141(1).
Title of Rule: Amend Sections 3.11, 3.25, and 6.11 of Regulation I, and Sections 2.02 and 4.01 of Regulation III.
Purpose: To adjust the maximum civil penalty amount for inflation; to update and provide clarification regarding the delegated NSPS and NESHAPs provisions; and to update our references to EPA rules to reflect changes EPA has made.
Other Identifying Information: 3.11 Civil Penalties; 3.25 Federal Regulation Reference Date; 6.11 New Source Performance Standards; 2.02 National Emission Standards for Hazardous Air Pollutants; 4.01 Asbestos Definitions.
Statutory Authority for Adoption: Chapter 70.94 RCW.
Statute Being Implemented: RCW 70.94.141.
Summary: Increases maximum civil penalty amount for inflation, updates and clarifies the delegated NSPS and NESHAPs provisions, and updates references to EPA rules.
Reasons Supporting Proposal: Maximum civil penalty amount needs to be adjusted for inflation; delegation for federal NSPS and NESHAPs needs to be updated and clarified; our references to EPA rules need to be updated.
Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Jim Nolan, 110 Union Street, #500, Seattle, WA 98101, (206) 689-4053.
Name of Proponent: Puget Sound Clean Air Agency, governmental.
Rule is not necessitated by federal law, federal or state court decision.
Explanation of Rule, its Purpose, and Anticipated Effects: This proposal would increase the maximum civil penalty amount for inflation; update and clarify the delegation for federal NSPS and NESHAPs by excluding certain sections that do not apply; and update our references to EPA rules that have been changed by EPA.
Proposal Changes the Following Existing Rules: Maximum civil penalty amount would increase for inflation; delegation for federal NSPS and NESHAPs will be updated and clarified; and references to certain EPA rules will be updated to reflect changes that EPA has made.
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 Clean Air Agency, 110 Union Street, Suite 500, Seattle, WA 98101, on September 26, 2002, at 9:15 a.m.
Assistance for Persons with Disabilities: Contact Agency Receptionist, (206) 689-4010 by September 19, 2002, TDD (800) 833-6388 or (800) 833-6385 (Braille).
Submit Written Comments to: Dennis McLerran, Puget Sound Clean Air Agency, 110 Union Street, Suite 500, Seattle, WA 98101, fax (206) 343-7522, by September 16, 2002.
Date of Intended Adoption: September 26, 2002.
August 20, 2002
James Nolan
Director - Compliance
AMENDATORY SECTIONREGULATION I SECTION 3.11 CIVIL PENALTIES
(a) Any person who violates any of the provisions of Chapter 70.94 RCW or any of the rules or regulations in force pursuant
thereto, may incur a civil penalty in an amount not to exceed
(($13,663.00)) $ $13,977.00 per day for each violation.
(b) Any person who fails to take action as specified by an
order issued pursuant to Chapter 70.94 RCW or Regulations I, II,
and III of the Puget Sound Clean Air Agency shall be liable for a
civil penalty of not more than (($13,663.00)) $13,977.00 for each
day of continued noncompliance.
(c) Within 15 days after receipt of a Notice and Order of Civil Penalty, the person incurring the penalty may apply in writing to the Control Officer for the remission or mitigation of the penalty. Any such request must contain the following:
(1) The name, mailing address, telephone number, and telefacsimile number (if available) of the appealing party;
(2) A copy of the Notice and Order of Civil Penalty appealed from;
(3) A short and plain statement showing the grounds upon which the appealing party considers such order to be unjust or unlawful;
(4) A clear and concise statement of facts upon which the appealing party relies to sustain his or her grounds for appeal;
(5) The relief sought, including the specific nature and extent; and
(6) A statement that the appealing party has read the notice of appeal and believes the contents to be true, followed by the party's signature.
Upon receipt of the application, the Control Officer shall remit or mitigate the penalty only upon a demonstration by the requestor of extraordinary circumstances such as the presence of information or factors not considered in setting the original penalty.
(d) Any civil penalty may also be appealed to the Pollution Control Hearings Board pursuant to Chapter 43.21B RCW and Chapter 371-08 WAC if the appeal is filed with the Hearings Board and served on the Agency within 30 days after receipt by the person penalized of the notice imposing the penalty or 30 days after receipt of the notice of disposition on the application for relief from penalty.
(e) A civil penalty shall become due and payable on the later of:
(1) 30 days after receipt of the notice imposing the penalty;
(2) 30 days after receipt of the notice of disposition on application for relief from penalty, if such application is made; or
(3) 30 days after receipt of the notice of decision of the Hearings Board if the penalty is appealed.
(f) If the amount of the civil penalty is not paid to the Agency within 30 days after it becomes due and payable, the Agency may bring action to recover the penalty in King County Superior Court or in the superior court of any county in which the violator does business. In these actions, the procedures and rules of evidence shall be the same as in an ordinary civil action.
(g) Civil penalties incurred but not paid shall accrue interest beginning on the 91st 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 31st day following final resolution of the appeal.
(h) To secure the penalty incurred under this section, the Agency shall have a lien on any vessel used or operated in violation of Regulations I, II, and III which shall be enforced as provided in RCW 60.36.050.
Reviser's note: The typographical error in the above material occurred in the copy filed by the Puget Sound Clean Air Agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
AMENDATORY SECTION
REGULATION I SECTION 3.25 FEDERAL REGULATION REFERENCE DATE
Whenever federal regulations are referenced in Regulation I,
II, or III, the effective date shall be July 1, ((2001)) 2002.
AMENDATORY SECTION
REGULATION I SECTION 6.11 NEW SOURCE PERFORMANCE STANDARDS
It shall be unlawful for any person to cause or allow the
operation of any source in violation of any provision of Part 60,
Title 40, of the Code of Federal Regulations (((CFR))) (excluding
Subparts B, S, BB, and AAA) in effect as of the federal
regulation reference date listed in Section 3.25 of this
regulation herein incorporated by reference.
AMENDATORY SECTION
REGULATION III SECTION 2.02 NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS
It shall be unlawful for any person to cause or allow the
operation of any source in violation of any provision of Part 61
or Part 63, Title 40, of the Code of Federal Regulations
(((CFR))) (excluding Part 61, Subparts B, H, I, K, Q, R, T, and
W; and Part 63, Subpart LL, the provisions of Subpart M
pertaining to area source perchloroethylene dry cleaners, and the
provisions of Subparts S and MM pertaining to kraft and sulfite
pulp mills) in effect as of the federal regulation reference date
listed in Section 3.25 of Regulation I herein incorporated by
reference.
AMENDATORY SECTION
REGULATION III SECTION 4.01 ASBESTOS DEFINITIONS
(a) AHERA BUILDING INSPECTOR means a person who has successfully
completed the training requirements for a building inspector
established by EPA Asbestos Model Accreditation Plan; Interim
Final Rule (40 CFR Part 763, Appendix C) ((to Subpart E, I.B.3)))
and whose certification is current.
(b) ASBESTOS means the asbestiform varieties of actinolite, amosite (cummingtonite-grunerite), tremolite, chrysotile (serpentinite), crocidolite (riebeckite), or anthophyllite.
(c) ASBESTOS-CONTAINING MATERIAL means any material containing more
than one percent (1%) asbestos as determined using the method
specified in EPA regulations Appendix ((A)) E, Subpart ((F)) E,
40 CFR Part 763, Section l, Polarized Light Microscopy.
(d) ASBESTOS-CONTAINING WASTE MATERIAL means any waste that contains or is contaminated with asbestos-containing material. Asbestos-containing waste material includes asbestos waste from control equipment, materials used to enclose the work area during an asbestos project, asbestos-containing material collected for disposal, asbestos-contaminated waste, debris, containers, bags, protective clothing, or HEPA filters. Asbestos-containing waste material does not include samples of asbestos-containing material taken for testing or enforcement purposes.
(e) ASBESTOS PROJECT means any activity involving the abatement, renovation, demolition, removal, salvage, clean up, or disposal of friable, asbestos-containing material. It includes the removal and disposal of stored, friable, asbestos-containing material or asbestos-containing waste material. It does not include the application of duct tape, rewettable glass cloth, canvas, cement, paint, or other non-asbestos materials to seal or fill exposed areas where asbestos fibers may be released.
(f) ASBESTOS SURVEY means a written report describing an inspection using the procedures contained in EPA regulations (40 CFR 763.86), or an alternate method that has received prior written approval from the Control Officer, to determine whether materials or structures to be worked on, renovated, removed, or demolished (including materials on the outside of structures) contain asbestos.
(g) COMPONENT means any equipment, pipe, structural member, or other item covered or coated with, or manufactured from, asbestos-containing material.
(h) DEMOLITION means wrecking, razing, leveling, dismantling, or burning of a structure, making the structure permanently uninhabitable or unusable.
(i) FRIABLE, ASBESTOS-CONTAINING MATERIAL means asbestos-containing material that, when dry, can be crumbled, pulverized, or reduced to powder by hand pressure or by the forces expected to act upon the material in the course of demolition, renovation, or disposal. Such materials include, but are not limited to, thermal system insulation, surfacing material, and cement asbestos products.
(j) LEAK-TIGHT CONTAINER means a dust-tight and liquid-tight container, at least 6-mil thick, that encloses asbestos-containing waste material and prevents solids or liquids from escaping or spilling out. Such containers may include sealed plastic bags, metal or fiber drums, and sealed polyethylene plastic.
(k) NONFRIABLE, ASBESTOS-CONTAINING MATERIAL means asbestos-containing material that, when dry, cannot be crumbled, pulverized, or reduced to powder by hand pressure or by the forces expected to act on the material in the course of demolition, renovation, or disposal.
(l) RENOVATION means altering a facility or a component in any way, except demolition.
(m) SINGLE-FAMILY RESIDENCE means any non-multiple unit building containing space for uses such as living, sleeping, preparation of food, and eating that is used by one family who owns the property as their domicile. This term includes houses, mobile homes, trailers, detached garages, houseboats, and houses with a "mother-in-law apartment" or "guest room". This term does not include rental property or multiple-family units, nor does this term include any mixed-use building, structure, or installation that contains a residential unit.
(n) SURFACING MATERIAL means material that is sprayed-on, troweled-on, or otherwise applied to surfaces including, but not limited to, acoustical plaster on ceilings, paints, fireproofing materials on structural members, or other materials on surfaces for decorative purposes.
(o) SUSPECT ASBESTOS-CONTAINING MATERIAL means material that has historically contained asbestos including, but not limited to, surfacing material, thermal system insulation, roofing material, fire barriers, gaskets, flooring material, and cement siding.
(p) THERMAL SYSTEM INSULATION means material applied to pipes, fittings, boilers, tanks, ducts, or other structural components to prevent heat loss or gain.