WSR 18-17-168
[Filed August 21, 2018, 4:21 p.m.]
Original Notice.
Proposal is exempt under RCW 34.05.310(4) or 34.05.330(1).
Title of Rule and Other Identifying Information: Amend Regulation I, Sections 1.07 (Definitions) 3.11 (Civil Penalties) and 3.25 (Federal Regulation Reference Date).
Hearing Location(s): On September 27, 2018, at 8:45 a.m., at the Puget Sound Clean Air Agency, 1904 3rd Avenue, Suite 105, Seattle, WA 98101.
Date of Intended Adoption: September 27, 2018.
Submit Written Comments to: Robert Switalski, Puget Sound Clean Air Agency, 1904 3rd Avenue, Suite 105, Seattle, WA 98101, email, fax 206-343-7522, by September 26, 2018.
Assistance for Persons with Disabilities: Contact agency receptionist, phone 206-689-4010, fax 206-343-7522, TTY 800-833-6388 or 800-833-6385 (Braille), email, by September 20, 2018.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Section 1.07 - The definition of "Toxic Air Contaminant or TAC" in the agency's current rule (Regulation I, Section 1.07(w)) is no longer consistent with the definition of this term in WAC 173-400-030(91) and references an obsolete section of the WAC. The proposed update will replace the outdated definition with the current WAC definition.
Section 3.11 - The agency's practice for many years has been to annually adjust the maximum civil penalty amount as allowed by law. The proposed adjustment to the maximum civil penalty amount accounts for inflation, as authorized by RCW 70.94.431 and as determined by the state office of the economic and revenue forecast council. Without this adjustment, the maximum penalty amount would effectively decrease each year. CPI for the Seattle/Tacoma/Bellevue area increased by 4.04 percent for the 2017 calendar year, which amounts to an increase of $762.00 in the maximum civil penalty amount.
The proposed amendment does not affect the way the agency determines actual civil penalty amounts in individual cases. This continues to be done following civil penalty worksheets previously approved by the board.
Section 3.25 - This section currently provides that whenever federal rules are referenced in agency regulations, the effective date of the federal regulations referred to is July 1, 2017. This provides certainty so that persons affected by the regulations and agency staff know which version of a federal regulation to reference. For many years, the agency's practice has been to update this date annually to stay current with federal regulations. Following this practice, the proposed amendments would change the reference date to July 1, 2018.
Reasons Supporting Proposal: There are no benefits or costs associated with the proposed amendments.
Statutory Authority for Adoption: Chapter 70.94 RCW.
Statute Being Implemented: Chapter 70.94 RCW.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: Puget Sound Clean Air Agency, governmental.
Name of Agency Personnel Responsible for Drafting: Carole Cenci, 1904 3rd Avenue, Suite 105, Seattle, WA 98101, 206-689-4061; Implementation and Enforcement: Steve Van Slyke, 1904 3rd Avenue, Suite 105, Seattle, WA 98101, 206-689-4052.
A school district fiscal impact statement is not required under RCW 28A.305.135.
A cost-benefit analysis is not required under RCW 34.05.328. RCW 34.05.328 does not apply to local air agencies, per RCW 70.94.141.
This rule proposal, or portions of the proposal, is exempt from requirements of the Regulatory Fairness Act because the proposal:
Is exempt under RCW 19.85.025(3) as the rules relate only to internal governmental operations that are not subject to violation by a nongovernment party; rules are adopting or incorporating by reference without material change federal statutes or regulations, Washington state statutes, rules of other Washington state agencies, shoreline master programs other than those programs governing shorelines of statewide significance, or, as referenced by Washington state law, national consensus codes that generally establish industry standards, if the material adopted or incorporated regulates the same subject matter and conduct as the adopting or incorporating rule; and rules adopt, amend, or repeal a procedure, practice, or requirement relating to agency hearings; or a filing or related process requirement for applying to an agency for a license or permit.
Is exempt under RCW 19.85.011.
Explanation of exemptions: Chapter 19.85 RCW does not appear to apply to local air agencies.
August 21, 2018
Craig Kenworthy
Executive Director
When used herein:
(a) AGENCY means the Puget Sound Clean Air Agency.
(b) AIR CONTAMINANTmeans dust, fumes, mist, smoke, other particulate matter, vapor, gas, odorous substance, or any combination thereof.
(c) AIR POLLUTIONmeans the presence in the outdoor atmosphere of one or more air contaminants 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. Air pollution shall not include air contaminants emitted in compliance with chapter 17.21 RCW, the Washington Pesticide Application Act, which regulates the application and control of the use of various pesticides.
(d) AMBIENT AIR means the surrounding outside air.
(e) BOARDmeans the Board of Directors of the Puget Sound Clean Air Agency.
(f) COMBUSTIBLE REFUSEmeans solid or liquid combustible waste material.
(g) CONTROL EQUIPMENTmeans any device which prevents or controls the emission of any air contaminant.
(h) CONTROL OFFICER means the Air Pollution Control Officer of the Puget Sound Clean Air Agency.
(i) EMISSIONmeans a release of air contaminants into the ambient air.
(j) EMISSION STANDARD means a requirement established under the Federal Clean Air Act (FCAA) or chapter 70.94 RCW that limits the quantity, rate, or concentration of emissions of air contaminants on a continuous basis, including any requirement relating to the operation or maintenance of a source to assure continuous emission reduction and any design, equipment, work practice, or operational standard adopted under the FCAA or chapter 70.94 RCW.
(k) EQUIPMENTor EMISSIONS UNIT means any part of a stationary source or source that emits or would have the potential to emit any pollutant subject to regulation under the federal Clean Air Act, chapter 70.94 or 70.98 RCW.
(l) FUEL BURNING EQUIPMENT means equipment that produces hot air, hot water, steam, or other heated fluids by external combustion of fuel.
(m) GASOLINE means a petroleum distillate that is a liquid at standard conditions and has a true vapor pressure greater than 4 pounds per square inch absolute at 20°C, and is used as a fuel for internal combustion engines. Also any liquid sold as a vehicle fuel with a true vapor pressure greater than 4 pounds per square inch absolute at 20°C shall be considered "gasoline" for purpose of this regulation.
(n) GASOLINE STATIONmeans any site dispensing gasoline into motor vehicle, marine vessel, or aircraft fuel tanks from stationary storage tanks.
(o) HAZARDOUS AIR POLLUTANT means any air pollutant listed in or pursuant to section 112(b) of the federal Clean Air Act, 42 U.S.C. §7412.
(p) MOTOR VEHICLE means any operating vehicle or one capable of being operated that has its own self-contained sources of motive power, is designed for the transportation of people or property, and is of the type for which a license is required for operation on a highway.
(q) MULTIPLE CHAMBER INCINERATORmeans a furnace for the destruction of waste consisting of three or more refractory-lined combustion chambers in series, physically separated by refractory walls, interconnected by gas passage ports or ducts, and employing adequate design parameters necessary for maximum combustion of the material to be burned.
(r)OWNER or OPERATOR means the person who owns, leases, supervises, or operates the equipment or control equipment.
(s)PERSONmeans an individual, firm, public or private corporation, association, partnership, political subdivision, municipality, or government agency.
(t) REASONABLY AVAILABLE CONTROL TECHNOLOGY or RACT means the lowest emission standard that a particular source or source category is capable of meeting by the application of control technology that is reasonably available considering technological and economic feasibility. RACT is determined on a case-by-case basis for an individual source or source category taking into account the impact of the source upon air quality, the availability of additional controls, the emission reduction to be achieved by additional controls, the impact of additional controls on air quality, and the capital and operating costs of the additional controls. RACT requirements for any source or source category shall be adopted only after notice and opportunity for comment are afforded.
(u) REFUSE BURNING EQUIPMENT means equipment employed to burn any solid or liquid combustible refuse.
(v) SOURCE means all of the emissions unit(s) including quantifiable fugitive emissions, that are located on one or more contiguous or adjacent properties, and are under the control of the same person or persons under common control, whose activities are ancillary to the production of a single product or functionally related group of products. Activities shall be considered ancillary to the production of a single product or functionally related group of products if they belong to the same major group (i.e., which have the same 2-digit code) as described in the Standard Industrial Classification Manual, 1972, as amended by the 1977 supplement.
(w) TOXIC AIRPOLLUTANT(TAP) or "toxic air contaminant" ((CONTAMINANT or TAC)) means any ((Class A or Class B)) toxic air pollutant listed in WAC 173-460-150 ((and 173-460-160)). The term toxic air pollutant may include particulate matter and volatile organic compounds if an individual substance or a group of substances within either of these classes is listed in WAC 173-460-150 ((and/or 173-460-160)). The term toxic air pollutant does not include particulate matter and volatile organic compounds as generic classes of compounds.
(x)TRUE VAPOR PRESSURE means the equilibrium partial pressure of a petroleum liquid as determined by methods described in American Petroleum Institute Bulletin 2517, "Evaporative Loss from External Floating Roof Tanks", May 1996.
(y) URBANIZED AREA means those portions of King, Pierce, Kitsap, and Snohomish Counties designated as urbanized areas by the U.S. Department of Commerce, Bureau of the Census.
(z) VOLATILE ORGANIC COMPOUNDor VOC means an organic compound that participates in atmospheric photochemical reactions as defined in 40 CFR 51.100(s) in effect as of the federal regulation reference date listed in Section 3.25 of this regulation herein incorporated by reference.
(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 $((18,847.00)) 19,609.00, 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 $((18,847.00)) 19,609.00, for each day of continued noncompliance.
 (c) Within 30 days of the date of 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. To be considered timely, a mitigation request must be actually received by the Agency, during regular office hours, within 30 days of the date of receipt of a Notice and Order of Civil Penalty. This time period shall be calculated by excluding the first day and including the last, unless the last day is a Saturday, Sunday, or legal holiday, and then it is excluded and the next succeeding day that is not a Saturday, Sunday, or legal holiday is included. The date stamped by the Agency on the mitigation request is prima facie evidence of the date the Agency received the request.
(d) A mitigation request must contain the following:
(1) The name, mailing address, telephone number, and telefacsimile number (if available) of the party requesting mitigation;
(2) A copy of the Notice and Order of Civil Penalty involved;
(3) A short and plain statement showing the grounds upon which the party requesting mitigation considers such order to be unjust or unlawful;
(4) A clear and concise statement of facts upon which the party requesting mitigation relies to sustain his or her grounds for mitigation;
(5) The relief sought, including the specific nature and extent; and
(6) A statement that the party requesting mitigation has read the mitigation request and believes the contents to be true, followed by the party's signature.
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.
(e) Any civil penalty may also be appealed to the Pollution Control Hearings Board pursuant to chapter 43.21B RCW and chapter 371-08 WAC. An appeal must be filed with the Hearings Board and served on the Agency within 30 days of the date of receipt of the Notice and Order of Civil Penalty or the notice of disposition on the application for relief from penalty.
(f) 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.
(g) 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.
(h) 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.
(i) 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.
Whenever federal regulations are referenced in Regulation I, II, or III, the effective date shall be July 1, ((2017)) 2018.