WSR 10-08-088

PROPOSED RULES

NORTHWEST CLEAN

AIR AGENCY

[ Filed April 6, 2010, 3:44 p.m. ]

Original Notice.

Exempt from preproposal statement of inquiry under RCW 34.05.310(4).

Title of Rule and Other Identifying Information: Northwest Clean Air Agency regulation.

Hearing Location(s): Washington Department of Ecology, 1440 10th Street, Suite 102, Bellingham, WA 98225, on June 1, 2010, at 9:00 a.m.

Date of Intended Adoption: June 10, 2010.

Submit Written Comments to: Mark Buford, Northwest Clean Air Agency, 1600 South Second Street, Mount Vernon, WA 98273, e-mail mark@nwcleanair.org, fax (360) 428-1620, by June 10, 2010.

Assistance for Persons with Disabilities: Contact Scott Allison by May 10, 2010, (360) 428-1617 ext. 200.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: To update agency adoptions by reference, update internal references within the regulation, and to adopt New Section 155 - State Environmental Policy Act (SEPA), clarifying SEPA authority, policy and procedures.

Reasons Supporting Proposal: Authorized by WAC 197-11-904.

Statutory Authority for Adoption: Chapters 70.94 and 43.21C RCW.

Statute Being Implemented: Chapters 70.94 and 43.21C RCW.

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

Name of Proponent: Northwest Clean Air Agency, governmental.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Mark Asmundson, 1600 South Second Street, Mount Vernon, WA, (360) 428-1617.

No small business economic impact statement has been prepared under chapter 19.85 RCW. Not applicable under RCW 70.94.141.

A cost-benefit analysis is not required under RCW 34.05.328. Not applicable under RCW 70.94.141.

April 6, 2010

Mark Buford

Assistant Director

AMENDATORY SECTION


SECTION 104 - ADOPTION OF STATE AND FEDERAL LAWS AND RULES


104.1 All provisions of State Law as it now exists or may be hereafter amended, which is pertinent to the operation of the NWCAA, is hereby adopted by reference and made part of the Regulation of the NWCAA. Specifically, there is adopted by reference the Washington State Clean Air Act (RCW 70.94), the Administrative Procedures Act (RCW 34.05) and RCW 43.21A and 43.21B and the following state rules: WAC 173-400, (except 035, -070(8), -099, -100, -101, -102, -104, -110, -114, -116, -171), WAC 173-401, WAC 173-406, WAC 173-407, WAC 173-420, WAC 173-425, WAC 173-430, WAC 173-433, WAC 173-434, WAC 173-435, WAC 173-450, WAC 173-460, WAC 173-470, WAC 173-474, WAC 173-475, WAC 173-481, WAC 173-490, WAC 173-491, WAC 173-492, WAC 173-495, ((WAC 173-802)), and ((WAC 197-11)) portions of WAC 197-11 contained in Section 155.

104.2 All provisions of the following federal rules that are in effect as of April 5, 2010 ((October 29, 2007)) are hereby adopted by reference and made part of the Regulation of the NWCAA: 40 CFR Part 60 (Standards of Performance For New Stationary Sources) subparts A, B, C, Cb, Cc, Cd, Ce, D, Da, Db, Dc, E, Ea, Eb, Ec, F, G, H, I, J, Ja, K, Ka, Kb, L, M, N, Na, O, P, Q, R, T, U, V, W, X, Y, Z, AA, AAa ((A)), CC, DD, EE, GG, HH, KK, LL, MM, NN, PP, QQ, RR, SS, TT, UU, VV, VVa, WW, XX, AAA, BBB, DDD, FFF, GGG, GGGa, HHH, III, JJJ, KKK, LLL, NNN, OOO, PPP, QQQ, RRR, SSS, TTT, UUU, VVV, WWW, AAAA, BBBB, CCCC, DDDD, EEEE, FFFF, HHHH, IIII, JJJJ, KKKK and Appendix A - I; and 40 CFR Part 61 (National Emission Standards For Hazardous Air Pollutants) Subparts A, B, C, D, E, F, H, J, L, M, N, O, P, V, Y, BB, FF and 40 CFR Part 63 (National Emission Standards for Hazardous Air Pollutants for Source Categories) Subparts A, B, C, D, F, G, H, I, J, L, M, N, O, Q, R, T, U, W, X, Y, AA, BB, CC, DD, EE, GG, HH, II, JJ, KK, OO, PP, QQ, RR, SS, TT, UU, VV, ((XX,)) WW, XX, YY, CCC, DDD, EEE, GGG, HHH, III, JJJ, LLL, MMM, NNN, OOO, PPP, QQQ, TTT, UUU, VVV, XXX, AAAA, CCCC, DDDD, EEEE, FFFF, GGGG, HHHH, IIII, JJJJ, KKKK, MMMM, NNNN, OOOO, PPPP, QQQQ, RRRR, SSSS, TTTT, UUUU, VVVV, WWWW, XXXX, YYYY, ZZZZ, AAAAA, BBBBB, CCCCC, DDDDD, EEEEE, FFFFF, GGGGG, HHHHH, IIIII, JJJJJ, KKKKK, LLLLL, MMMMM, NNNNN, PPPPP, QQQQQ, RRRRR, SSSSS, TTTTT, ((DDDDDD, EEEEEE, FFFFFF, GGGGGG)); and 40 CFR 72, 73, 74, 75, 76, 77 and 78 (Acid Rain Program).

Reviser's note: The typographical errors in the above material occurred in the copy filed by the Northwest Clean Air Agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

AMENDATORY SECTION


SECTION 300 NEW SOURCE REVIEW


300.7 Notice of Construction - Submittal Requirements

Each Notice of Construction application shall:

a) be submitted on forms provided by the NWCAA;

b) be accompanied by the appropriate fee specified in NWCAA 324.2;

c) be accompanied by a completed State Environmental Policy Act (SEPA) checklist consistent with ((WAC 197-11)) NWCAA 155; and

d) include a "top down" BACT analysis, as defined at the time of submittal, except where the Federal Clean Air Act requires LAER; and

e) An applicant filing a Notice of Construction application for a project described in WAC 173-400-117(2), Special protection requirements for Class I areas, shall send a copy of the application to the responsible federal land manager.

NEW SECTION


SECTION 155 - STATE ENVIRONMENTAL POLICY ACT


155.1 Authority

A. NWCAA adopts these policies and procedures under State Environmental Policy Act (SEPA), RCW 43.21C.120, and the SEPA Rules, Washington Administrative Code (WAC) 197-11-904, with respect to its performance of or participation in environmental review.

B. The SEPA Rules set forth in Chapter 197-11 WAC must be used in conjunction with these policies and procedures.

155.2 Purpose and Adoption by Reference.

A. NWCAA adopts the following sections of Chapter 197-11 WAC by reference:


WAC 197-11-040: Definitions
-050: Lead Agency
-055: Timing of the SEPA Process
-060: Content of Environmental Review
-070: Limitations on Actions During SEPA Process
-080: Incomplete or Unavailable Information
-090: Supporting Documents
-100: Information Required of Applicants
-250: SEPA/Model Toxics Control Act Integration
-253: SEPA Lead Agency for MTCA Actions
-256: Preliminary Evaluation
-259: Determination of Nonsignificance for MTCA Remedial Action
-262: Determination of Significance for MTCA Remedial Action
-265: Early Scoping for MTCA Remedial Actions
-268: MTCA Interim Actions
WAC 197-11-300: Purpose of This Part
-305: Categorical Exemptions
-310: Threshold Determination Required
-315: Environmental Checklist
-330: Threshold Determination Process
-335: Additional Information
-340: Determination of Non-Significance (DNS)
-350: Mitigated DNS
-360: Determination of Significance (DS)/Initiation of Scoping
-390: Effect of Threshold Determination
WAC 197-11-400: Purpose of EIS
-402: General Requirements
-405: EIS Types
-406: EIS Timing
-408: Scoping
-410: Expanded Scoping
-420: EIS Preparation
-425: Style and Size
-430: Format
-435: Cover Letter or Memo
-440: EIS Contents
-442: Contents of EIS on Non-Project Proposals
-443: EIS Contents When Prior Non-Project EIS
-444: Elements of the Environment
-448: Relationship of EIS to Other Considerations
-450: Cost-Benefit Analysis
-455: Issuance of DEIS
-460: Issuance of FEIS
WAC 197-11-500: Purpose of This Part
-502: Inviting Comment
-504: Availability and Cost of Environmental Documents
-508: SEPA Register
-510: Public Notice
-535: Public Hearings and Meetings
-545: Effect of No Comment
-550: Specificity of Comments
-560: FEIS Response to Comments
-570: Consulted Agency Costs to Assist Lead Agency
WAC 197-11-600: When to Use Existing Environmental Documents
-610: Use of NEPA Documents
-620: Supplemental Environmental Impact Statement - Procedures
-625: Addenda Procedures
-630: Adoption Procedures
-635: Incorporation by Reference Procedures
-640: Combining documents
WAC 197-11-650: Purpose of This Part.
-655: Implementation.
-660: Substantive Authority and Mitigation.
-680: Appeals.
WAC 197-11-700: Definitions
-702: Act
-704: Action
-706: Addendum
-708: Adoption
-710: Affected Tribe
-712: Affecting
-714: Agency
-716: Applicant
-718: Built Environment
-720: Categorical Exemption
-722: Consolidated Appeal
-724: Consulted Agency
-726: Cost-Benefit Analysis
-728: County/City
-730: Decision-Maker
-732: Department
-734: Determination of Non-Significance (DNS)
-736: Determination of Significance (DS)
-738: EIS
-740: Environment
-742: Environmental Checklist
-744: Environmental Document
-746: Environmental Review
-750: Expanded Scoping
-752: Impacts
-754: Incorporation by Reference
-756: Lands Covered by Water
-758: Lead Agency
-760: License
-762: Local Agency
-764: Major Action
-766: Mitigated DNS
-768: Mitigation
-770: Natural Environment
-772: NEPA
-774: Non-Project
-776: Phased Review
-778: Preparation
-780: Private Project
-782: Probable
-784: Proposal
-786: Reasonable Alternative
-788: Responsible Official
-790: SEPA
-792: Scope
-793: Scoping
-794: Significant
-796: State Agency
-797: Threshold Determination
-799: Underlying Governmental Action
WAC 197-11-800: Categorical Exemptions
-880: Emergencies
-890: Petitioning DOE to Change Exemptions
WAC 197-11-900: Purpose of This Part
-902: Agency SEPA Policies
-904: Agency SEPA Procedures
-916: Application to Ongoing Actions
-920: Agencies with Environmental Expertise
-922: Lead Agency Rules
-924: Determining the Lead Agency
-926: Lead Agency for Governmental Proposals
-928: Lead Agency for Public and Private Proposals
-930: Lead Agency for Private Projects With One Agency With Jurisdiction
-932: Lead Agency for Private Projects Requiring Licenses From More Than One Agency, When One of the Agencies Is a County/City
-934: Lead Agency for Private Projects Requiring Licenses From A Local Agency, Not a City/County, and One or More Than One State Agency
-936: Lead Agency for Private Projects Requiring Licenses From More Than One State Agency
-938: Lead Agencies for Specific Proposals
-940: Transfer of Lead Agency Status to a State Agency
-942: Agreements on Lead Agency Status
-944: Agreements on Division of Lead Agency Duties
-946: DOE Resolution of Lead Agency Disputes
-948: Assumption of Lead Agency Status
WAC 197-11-960: Environmental Checklist
-965: Adoption Notice
-970: Determination of Non-Significance
-980: Determination of Significance and Scoping Notice (DS)
-985: Notice of Assumption of Lead Agency Status
-990: Notice of Action

B. In addition to the definitions contained in WAC 197-11-700 through WAC 197-11-799, when used in these policies and procedures the following terms shall have the following meanings, unless the context indicates otherwise:

SEPA Rules. "SEPA Rules" means Chapter 197-11 WAC.

155.3 Responsible Official Designation and Responsibilities

A. For all proposals for which NWCAA is the lead agency, the responsible official shall be the Control Officer of NWCAA or the NWCAA employee designated by the Control Officer.

B. For all proposals for which NWCAA is the lead agency, the responsible official shall make the threshold determination, supervise scoping and preparation of any required environmental impact statement (EIS), and perform any other functions assigned to "NWCAA," the "lead agency," or "responsible official" by these policies and procedures.

C. NWCAA shall retain all documents required by these policies and procedures and make them available in accordance with applicable law.

155.4 Lead Agency Determination and Responsibilities

A. When the NWCAA receives an application for or initiates a proposal that involves a nonexempt action, the NWCAA shall determine the lead agency for that proposal under WAC 197-11-050, 197-11-253, and 197-11-922 through 197-11-940; unless the lead agency has been previously determined or the NWCAA is aware that another agency is in the process of determining the lead agency. When the NWCAA is the lead agency for a proposal, the responsible official shall supervise compliance with the threshold determination requirements, and if an EIS is necessary, shall supervise preparation of the EIS.

B. When NWCAA is not the lead agency for a proposal, it shall use and consider, as appropriate, the environmental documents of the lead agency in making decisions on the proposal. NWCAA shall not prepare or require preparation of a DNS or EIS in addition to that prepared by the lead agency, unless required under WAC 197-11-600. In some cases, the Agency may conduct supplemental environmental review under WAC 197-11-600.

C. If NWCAA receives a lead agency determination made by another agency that appears inconsistent with the criteria of WAC 197-11-253 or 197-11-922 through 197-11-940, it may object to the determination and take such action as authorized by the SEPA Rules.

D. NWCAA may make agreements as to lead agency status or shared lead agency duties for a proposal as described in WAC 197-11-942 and 197-11-944.

E. When making a lead agency determination for a private project, NWCAA shall require sufficient information from the applicant to identify which other agencies (if any) have jurisdiction over the proposal.

155.5. Time Limits and Other Considerations Applicable to SEPA Rules

A. For nonexempt proposals, the DNS, FEIS, and/or such other environmental documentation as the responsible official deems appropriate shall accompany NWCAA's staff recommendation to any appropriate advisory body.

155.6 Use of Exemptions

A. When NWCAA receives an application for a permit or, in the case of governmental proposals, NWCAA initiates the proposal, NWCAA shall determine whether the permit and/or the proposal is exempt. NWCAA's determination that a permit or proposal is exempt shall be final and not subject to administrative review. If a permit or proposal is exempt, none of the procedural requirements of these policies and procedures apply to the proposal. NWCAA shall not require completion of an environmental checklist for an exempt permit or proposal.

B. In determining whether or not a proposal is exempt, NWCAA shall make certain the proposal is properly defined and shall identify the governmental licenses required (WAC 197-11-060). If a proposal includes exempt and nonexempt actions, NWCAA shall determine the lead agency, even if the license application that triggers NWCAA's consideration is exempt.

C. If a proposal includes both exempt and nonexempt actions, NWCAA may authorize exempt actions prior to compliance with the procedural requirements of these policies and procedures, except that:

1. NWCAA shall not give authorization for:

a) Any nonexempt action;

b) Any action that would have an adverse environmental impact; or

c) Any action that would limit the choice of alternatives.

2. NWCAA may withhold approval of an exempt action that would lead to modification of the physical environment, when such modification would serve no purpose if nonexempt action(s) were not approved; and

3. NWCAA may withhold approval of exempt actions that would lead to substantial financial expenditures by a private applicant when the expenditures would serve no purpose if nonexempt action(s) were not approved.

155.7 Environmental Checklist

A. A completed environmental checklist (or a copy) shall be filed at the same time as an application for a permit, license, certificate, or other approval not specifically exempted in these policies and procedures; notwithstanding the preceding, a checklist is not needed if NWCAA and applicant agree an EIS is required, SEPA compliance has been completed, or SEPA compliance has been initiated by another agency. The environmental checklist shall be in the form provided in WAC 197-11-960, except that Section B.2.a. Air, of the checklist shall state: "What types of emissions to the air would result from the proposal (i.e., dust, automobile, odors, industrial wood smoke, greenhouse gases) during construction and when the project is completed? If any, generally describe and give approximate quantities, if known." As used throughout these policies and procedures, environmental checklist means the environmental checklist required by these policies and procedures.

B. NWCAA shall use the environmental checklist to determine the lead agency and, if NWCAA is the lead agency, for determining the responsible official and for making the threshold determination.

C. For private proposals, NWCAA will require the applicant to complete the environmental checklist, providing assistance as necessary. For Agency proposals, NWCAA shall complete the environmental checklist. NWCAA may require that it, and not the private applicant, will complete all or part of the environmental checklist for a private proposal, if either of the following occurs:

1. NWCAA has technical information on a question or questions that is unavailable to the private applicant; or

2. The applicant has provided inaccurate information on previous proposals or on proposals currently under consideration.

155.8 Mitigated DNS

A. As provided in these policies and procedures and in WAC 197-11-350, the responsible official may issue a DNS based on conditions attached to the proposal by the responsible official or on changes to, or clarifications of, the proposal made by the applicant.

B. An applicant may request in writing early notice of whether a DS is likely under WAC 197-11-350. "Early notice" means NWCAA's response to an applicant stating whether it

considers issuance of a determination of significance likely for the applicant's proposal. The request must:

1. Follow submission of a complete permit application and environmental checklist for a nonexempt proposal for which NWCAA is lead agency; and

2. Precede NWCAA's actual threshold determination for the proposal.

C. The responsible official should respond to the request for early notice within 30 working days. The response shall:

1. Be written;

2. State whether NWCAA currently considers issuance of a DS likely and, if so, indicate the general or specific area(s) of concern that is/are leading NWCAA to consider a DS; and

3. State that the applicant may change or clarify the proposal to mitigate the indicated impacts, revising the environmental checklist and/or permit application as necessary to reflect the changes or clarifications.

D. As much as possible, NWCAA should assist the applicant with identification of impacts to the extent necessary to formulate mitigation measures.

E. When an applicant submits a changed or clarified proposal, along with a revised or amended environmental checklist, NWCAA shall base its threshold determination on the changed or clarified proposal and shall make the determination within 15 days of receiving the changed or clarified proposal:

1. If NWCAA indicated specific mitigation measures in its response to the request for early notice, and the applicant changed or clarified the proposal to include those specific mitigation measures, NWCAA shall issue and circulate a DNS under WAC 197-11-340(2).

2. If NWCAA indicated areas of concern, but did not indicate specific mitigation measures that would allow it to issue a DNS, NWCAA shall make the threshold determination, issuing a DNS or DS as appropriate.

3. The applicant's proposed mitigation measures (clarifications, changes, or conditions) must be in writing and must be specific.

4. Mitigation measures that justify issuance of a mitigated DNS may be incorporated in the DNS by reference to NWCAA staff reports, studies, or other documents.

F. A mitigated DNS is issued under WAC 197-11-340(2), requiring a fourteen-day comment period and public notice.

G. Mitigation measures incorporated in the mitigated DNS shall be deemed conditions of approval of the permit decision and may be enforced in the same manner as any term or condition of the permit, or enforced in any manner specifically prescribed by NWCAA.

H. If NWCAA's tentative decision on a permit or approval does not include mitigation measures that were incorporated in a mitigated DNS for the proposal, NWCAA should evaluate the threshold determination to ensure consistency with WAC 197-11-340 (3)(a) (withdrawal of DNS).

I. NWCAA's early notice under Section 155.8 C above shall not be construed as determination of significance. In addition, preliminary discussion of clarifications or changes to a proposal, as opposed to a written request for early notice, shall not bind NWCAA to consider the clarifications or changes in its threshold determination.

155.9 Preparation of EIS--Additional Considerations

A. Preparation of a draft and final EIS (DEIS and FEIS) and draft and final supplemental EIS (SEIS) is the responsibility of the responsible official. Before NWCAA issues an EIS, the responsible official shall be satisfied that it complies with these policies and procedures and Chapter 197-11 WAC.

B. The DEIS and FEIS or draft and final SEIS may be prepared by NWCAA, by outside consultants selected by NWCAA, or by such other person as NWCAA may so direct consistent with the SEPA Rules. The NWCAA retains sole authority to select persons or firms to author, co-author, provide special services, or otherwise participate in preparing required environmental documents. If the NWCAA requires an EIS for a proposal and determines that someone other than the NWCAA will prepare the EIS, the responsible official shall notify the applicant after completion of the threshold determination. The responsible official shall also notify the applicant of the NWCAA's procedure for EIS preparation, including approval of the DEIS and FEIS prior to distribution.

C. NWCAA may require an applicant to provide information NWCAA does not possess, including specific investigations or research. However, the applicant may not be required to supply information that is not required under these policies and procedures or that is being requested from another agency. (This does not apply to information NWCAA may request under other authority.) Additional information may be required as set forth in WAC 197-11-100.

155.10 Additional Elements To Be Covered In An EIS

The following additional elements are part of the environment for the purpose of EIS content, but do not add to the criteria for threshold determination or perform any other function or purpose under these policies and procedures:

A. Economy

B. Social policy analysis

C. Cost-benefit analysis

155.11 Public Notice

A. Whenever the NWCAA issues a DNS under WAC 197-11-340(b) or a DS under WAC 197-11-360(c), the NWCAA shall give public notice as follows:

1. If public notice is required for a nonexempt permit or decision document, the notice shall state whether a DS or DNS has been issued and when comments are due.

2. If no public notice is required for the permit or approval, the NWCAA shall give notice of the DNS or DS by:

a) Written or electronic (email) notice to public or private groups that have expressed interest in a certain proposal or in the type of proposal being considered, and

b) Posting notice on the NWCAA website.

3. Whenever the NWCAA issues a DS under WAC 197-11-360(3), the NWCAA shall state the scoping procedure for the proposal in the DS as required in WAC 197-11-408 and in the public notice.

B. Whenever the NWCAA issues a DEIS under WAC 197-11-455(5) or a SEIS under WAC 197-11-620, notice of the availability of those documents shall be given by:

1. Indicating the availability of the DEIS in any public notice required for a nonexempt permit or decision document; and at least one of the following methods:

2. Posting the property, for site-specific proposals;

3. Publishing notice in a newspaper of general circulation in the county, city, or general area where the proposal is located;

4. Notifying public or private groups that have expressed interest in a certain proposal or in the type of proposal being considered;

5. Notifying the news media;

6. Placing notices in appropriate regional, neighborhood, ethnic, or trade journals;

7. Publishing notice in NWCAA newsletters and/or sending notice to NWCAA mailing lists (general lists or specific lists for proposals or subject areas); and/or

8. Posting notice on the NWCAA website.

C. Whenever possible, the NWCAA shall integrate the public notice required under these policies and procedures with existing notice procedures for the NWCAA's nonexempt permit(s) or approval(s) required for the proposal.

D. The NWCAA may require an applicant to complete the public notice requirements for the applicant's proposal at his or her expense.

155.12 Designation of Official to Perform Consulted Agency Responsibilities for NWCAA

A. The responsible official shall be responsible for the preparation of written comments for NWCAA in response to a consultation request prior to a threshold determination, participation in scoping, and reviewing a DEIS.

B. The responsible official shall be responsible for the NWCAA's compliance with WAC 197-11-550 whenever the NWCAA is a consulted agency. The responsible official is authorized to develop operating procedures that will ensure that responses to consultation requests are prepared in a timely fashion and include data from the NWCAA. If the nature of the proposal is such that it involves significant impacts on NWCAA's facilities or property, or will require a significant amount of time to provide the information requested to the lead agency, NWCAA may request that the lead agency impose fees upon the applicant to cover the costs of NWCAA's SEPA compliance.

155.13 SEPA Substantive Authority

A. The policies and goals set forth in this ordinance are supplementary to those in NWCAA's existing authorities.

B. NWCAA may attach conditions to a permit or approval for a proposal so long as the NWCAA determines that:

1. Such conditions are necessary to mitigate specific probable adverse environmental impacts identified in environmental documents prepared pursuant to this ordinance; and

2. Such conditions are in writing; and

3. The mitigation measures included in such conditions are reasonable and capable of being accomplished; and

4. NWCAA has considered whether other local, state, or federal mitigation measures applied to the proposal are sufficient to mitigate the identified impacts; and

5. Such conditions are based on one or more policies in subsections D through F of this section and cited in the permit or other decision document.

C. The NWCAA may deny a permit or approval for a proposal on the basis of SEPA so long as the NWCAA determines that:

1. The proposal would be likely to result in significant adverse environmental impacts identified in a final or supplemental EIS prepared pursuant to these policies and procedures; and

2. Reasonable mitigation measures are insufficient to mitigate the identified impact.

3. The denial is based on one or more policies identified in subsections D through F of this section and identified in writing in the decision document.

D. NWCAA designates and adopts by reference the following policies, plans, rules, and regulations as the potential bases for NWCAA's exercise of substantive authority under SEPA, pursuant to this section:

1. NWCAA shall use all practicable means, consistent with other essential considerations of state policy, to improve and coordinate plans, functions, programs, and resources to the end that the state and its citizens may:

a) Fulfill the responsibilities of each generation as trustee of the environment for succeeding generations;

b) Ensure for all people of Washington, safe, healthful, productive, and aesthetically and culturally pleasing surroundings;

c) Attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences;

d) Preserve important historic, cultural, and natural aspects of our national heritage;

e) Maintain, wherever possible, an environment that supports diversity and variety of individual choice;

f) Achieve a balance between population and resource use that will permit high standards of living and a wide sharing of life's amenities; and

g) Enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources.

2. NWCAA recognizes that each person has a fundamental and inalienable right to a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment.

E. NWCAA adopts by reference the policies in the following laws and NWCAA resolutions, regulations, and plans:

1. Federal and state Clean Air Acts, and regulations adopted thereunder.

2. The Regulation of the Northwest Clean Air Agency

3. Resolutions adopted by NWCAA Board of Directors.

4. Maintenance plans.

5. Washington State Implementation Plan.

F. NWCAA establishes the following additional policies:

1. Air quality

a) Policy Background

(i) Air pollution can be damaging to human health, plants and animals, visibility, aesthetics, and the overall quality of life.

(ii) NWCAA is responsible for monitoring air quality in the three-county area, setting standards, and regulating certain development activities with the objective of meeting all applicable air quality standards.

(iii) Federal, state, and regional regulations and programs cannot always anticipate or adequately mitigate adverse air quality impacts.

b) Policies

(i) To minimize or prevent adverse air quality impacts.

(ii) To secure and maintain such levels of air quality as will protect human health and safety and, to the greatest degree practicable, prevent injury to plant and animal life and to property, foster the comfort and convenience of its inhabitants, seek public participation in policy planning and implementation, promote the economic and social development of the area within our jurisdiction, and facilitate the enjoyment of the natural attractions of the Puget Sound area.

(iii) To eliminate emissions of ozone-depleting chlorofluorocarbons, in the interests of national and global environmental protection; to consider energy efficiency and conservation to reduce greenhouse gases and in addition, to recognize other existing relevant regulatory requirements.

(iv) To reduce woodstove emissions by educating the public about the effects of woodstove emissions, other heating alternatives, and the desirability of achieving better emission performance and heating efficiency from woodstoves pursuant to standards adopted by State and Federal Agencies; and to encourage replacing uncertified woodstoves with cleaner sources of heat.

(v) To reduce outdoor burning to the greatest extent practical.

(vi) To develop and adopt strategies for effectively reducing or eliminating impacts from toxic air contaminants.

(vii) To control volatile organic compound (VOC) emissions in order to meet National Ambient Air Quality Standard for ozone.

(viii) If the responsible official makes a written finding that the applicable federal, state, and/or regional regulations did not anticipate or are inadequate to address the particular impact(s) of a project, the responsible official may condition or deny the proposal to mitigate its adverse impacts.

2. Land Use

a) Policy Background

(i) Adverse land use impacts may result when a proposed project or land use policy includes uses that may be consistent with applicable zoning requirements but inconsistent with air quality objectives or regulations.

(ii) Adverse cumulative impacts may result when particular land uses permitted under the zoning code occur in an area to such an extent that they expose sensitive populations to air quality related health and environmental adverse impacts.

b) Policies

(i) To ensure that proposed uses in projects are reasonably compatible with surrounding uses and are consistent with applicable air quality regulations.

(ii) To reduce regional air pollution emissions associated with land uses by promoting clean alternative forms of domestic use fuels, including natural gas, in new single and multifamily housing developments within urban growth areas. In addition, to discourage wood as a source of heat for residential development in low-lying areas susceptible to pollution accumulations.

(iii) To encourage municipal curbside solid and compostable waste collection services at reasonable costs.

3. Transportation

a) Policy Background

(i) Excessive traffic can adversely affect regional air quality.

(ii) Substantial traffic volumes associated with major projects may adversely impact air quality in surrounding areas.

b) Policies

(i) To minimize or prevent adverse traffic impacts that would undermine the air quality of a neighborhood or surrounding areas.

(ii) To promote transportation demand and systems management actions designed to reduce vehicle emissions by reducing the use of single occupancy vehicles, reducing traffic congestion, and increasing public transportation services.

(iii) To encourage integrating land use and transportation planning.

(iv) To emphasize the importance of air quality conformity determinations required for proposed transportation plans, programs, and projects.

(v) To pursue and support alternative and clean fuels projects and programs.

(vi) To promote and support land use plans and projects designed to reduce vehicle emissions by reducing the use of single occupant vehicles, number of vehicle miles traveled, and traffic congestion; and supporting the use of public transportation.

(vii) In determining the necessary air quality impact mitigation, the responsible official will examine the mitigation proposed by the local jurisdiction.

4. Cumulative Effects

a) The analysis of cumulative effects shall include a reasonable assessment of:

(i) The capacity of natural systems, such as air, water, light, and land, to absorb the direct and reasonably anticipated indirect impacts of the proposal, and

(ii) The demand upon facilities, services, and natural systems of present, simultaneous, and known future development in the area of the project or action.

b) An action or project may be conditioned or denied to lessen or eliminate its cumulative effects on the environment:

(i) When considered together with prior, simultaneous, or induced future development; or

(ii) When, taking into account known future development under established zoning or other regulations, it is determined that a project will use more than its share of present and planned facilities, services, and natural systems.

155.14 Administrative Appeals

A. NWCAA hereby eliminates, pursuant to WAC 197-11-680(2), appeals to its legislative body of determinations relating to SEPA.; and

B. NWCAA hereby elects, pursuant to WAC 197-11-680(3), not to provide for administrative appeals of determinations relating to SEPA.

155.15 Notice/Statue of Limitations

A. NWCAA, applicant for, or proponent of an action may publish a notice of action pursuant to RCW 43.21C.080 for any action.

B. The form of the notice shall be substantially in the form provided in WAC 197-11-990. The notice shall be published by the NWCAA, the city clerk or county auditor, applicant, or proponent pursuant to RCW 43.21C.080.

155.16 Fees

A. In addition to the fees set forth in Section 324 of the NWCAA Regulation, the following fees apply:

1. Threshold Determination - NWCAA may contract directly with a consultant for preparation of an environmental checklist or other information needed for NWCAA to make a threshold determination, and may bill such costs and expenses directly to the applicant. NWCAA may require the applicant to post bond or otherwise ensure payment of such costs and expenses. In addition, NWCAA may charge a calculated fee from any applicant to cover the costs incurred by NWCAA in preparing an environmental checklist or other information needed for NWCAA to make a threshold determination.

2. Environmental Impact Statement

a) When NWCAA is the lead agency for a proposal requiring an EIS and the responsible official determines that the EIS shall be prepared by employees of NWCAA, NWCAA may charge and collect a reasonable fee from any applicant to cover costs incurred by NWCAA in preparing the EIS.

b) The responsible official shall advise the applicant(s) of the projected costs for the EIS prior to actual preparation; the applicant shall post bond or otherwise ensure payment of such costs.

c) The responsible official may determine that NWCAA will contract directly with a consultant for preparation of an EIS, or a portion of the EIS, for activities initiated by some persons or entity other than NWCAA and may bill such costs and expenses directly to the applicant. NWCAA may require the applicant to post bond or otherwise ensure payment of such costs.

d) If a proposal is modified so that an EIS is no longer required, the responsible official shall refund any fees collected under Section 155.16 A 1, and 2 of these policies and procedures that remain after incurred costs are paid.

e) NWCAA may collect a reasonable fee from an applicant to cover the cost of meeting the public notice requirements of these policies and procedures relating to the applicant's proposal.

f) NWCAA shall not collect a fee for performing its duties as a consulted agency, except as provided in WAC 197-11-570.

g) NWCAA may charge any person for copies of any document prepared under this ordinance, and for mailing the document, in a manner provided by chapter 42.17 RCW.

155.17 Severability

A. If any provision of these policies and procedures or their application to any person or circumstance is held invalid, the remainder of these policies and procedures, or the application of such invalid provision to other persons or circumstances, shall not be affected.

Reviser's note: The typographical errors in the above material occurred in the copy filed by the Northwest Clean Air Agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

Washington State Code Reviser's Office