Table 2 – Energy Facilities Site Evaluation Council Regulations – page 1 

Table 2 – Energy Facilities Site Evaluation Council Regulations 

WAC 463-39 -- GENERAL AND OPERATING PERMIT REGULATIONS FOR AIR 

POLLUTION SOURCES 

WAC 463-39-005 Adoption by Reference. 

(1) The energy facility site evaluation council adopts the following sections or subsections of 

chapter 173-400 WAC by reference. 

Citation Title State 

Effective 

Date 

Explanation 

Washington Administrative Code, Chapter 463-39 -- General Regulations for Air 

Pollution Sources

400-030 Definitions 9/20/93 

400-040 General Standards for Maximum Emissions 9/20/93 except (1)(c), and 

(1)(d), (2), (4), and 

the 2nd paragraph 

of (6) 

400-050 Emission Standards for Combustion and Incineration 

Units 

3/22/91 except the exception 

provision in (3) 

400-060 Emission Standards for General Process Units 3/22/91 

400-081 Startup and Shutdown 9/20/93 

400-091 Voluntary Limits on Emissions 9/20/93 including all 

regulatory orders 

issued pursuant to 

this section 

400-105 Records, Monitoring and Reporting 9/20/93 

400-107 Excess Emissions 9/20/93 

400-110 New Source Review (NSR) 9/20/93 

400-112 Requirements for New Sources in Nonattainment Areas 9/20/93 except (8) 

400-113 Requirements for New Sources in Attainment or 

Unclassifiable Areas 

9/20/93 except (5) 

400-151 Retrofit Requirements for Visibility Protection 3/22/91 

400-161 Compliance Schedules 3/22/91 

400-171 Public Involvement 9/20/93 
Table 2 – Energy Facilities Site Evaluation Council Regulations – page 2 

Citation Title State 

Effective 

Date 

Explanation 

400-190 Requirements for Nonattainment Areas 3/22/91 

400-200 Creditable Stack Height & Dispersion Techniques 3/22/91 

400-205 Adjustment for Atmospheric Conditions 3/22/91 

State effective: 0/21/95; EPA effective: 7/22/96

EFSEC Adoption by Reference 

173-400-030 Definitions. 

Except as provided elsewhere in this chapter, the following definitions apply throughout the 

chapter: 

(1) "Actual emissions" means the actual rate of emissions of a pollutant from an emission unit, 

as determined in accordance with (a) through (c) of this subsection. 

(a) In general, actual emissions as of a particular date shall equal the average rate, in tons per 

year, at which the emissions unit actually emitted the pollutant during a two-year period which 

precedes the particular date and which is representative of normal source operation. Ecology or 

an authority shall allow the use of a different time period upon a determination that it is more 

representative of normal source operation. Actual emissions shall be calculated using the 

emissions unit's actual operating hours, production rates, and types of materials processed, 

stored, or combusted during the selected time period. 

(b) Ecology or an authority may presume that source-specific allowable emissions for the unit 

are equivalent to the actual emissions of the emissions unit. 

(c) For any emissions unit which has not begun normal operations on the particular date, actual 

emissions shall equal the potential to emit of the emissions unit on that date. 

(2) "Adverse impact on visibility" means visibility impairment which interferes with the 

management, protection, preservation, or enjoyment of the visitor's visual experience of the 

Federal Class I area. This determination must be made on a case-by-case basis taking into 

account the geographic extent, intensity, duration, frequency, and time of visibility impairment, 

and how these factors correlate with (a) times of visitor use of the Federal Class I area, and (b) 

the frequency and timing of natural conditions that reduce visibility. This term does not include 

effects on integral vistas. 

(3) "Air contaminant" means dust, fumes, mist, smoke, other particulate matter, vapor, gas, 

odorous substance, or any combination thereof. "Air pollutant" means the same as "air 

contaminant." 
Table 2 – Energy Facilities Site Evaluation Council Regulations – page 3 

(4) "Air pollution" means 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. For the purposes of this chapter, 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. 

(5) "Allowable emissions" means the emission rate of a stationary source calculated using the 

maximum rated capacity of the stationary source (unless the stationary source is subject to 

federally enforceable limits which restrict the operating rate, or hours of operation, or both) and 

the most stringent of the following: 

(a) The applicable standards as set forth in 40 CFR Part 60 or 61; 

(b) Any applicable state implementation plan emissions limitation including those with a future 

compliance date; or 

(c) The emissions rate specified as a federally enforceable permit condition, including those 

with a future compliance date. 

(6) "Ambient air" means the surrounding outside air. 

(7) "Ambient air quality standard" means an established concentration, exposure time, and 

frequency of occurrence of air contaminant(s) in the ambient air which shall not be exceeded. 

(8) "Authority" means any air pollution control agency whose jurisdictional boundaries are 

coextensive with the boundaries of one or more counties. 

(9) "Best available control technology (BACT)" means an emission limitation based on the 

maximum degree of reduction for each air pollutant subject to regulation under chapter 70.94 

RCW emitted from or which results from any new or modified stationary source, which the 

permitting authority, on a case-by-case basis, taking into account energy, environmental, and 

economic impacts and other costs, determines is achievable for such source or modification 

through application of production processes and available methods, systems, and techniques, 

including fuel cleaning, clean fuels, or treatment or innovative fuel combustion techniques for 

control of each such pollutant. In no event shall application of the "best available control 

technology" result in emissions of any pollutants which will exceed the emissions allowed by 

any applicable standard under 40 CFR Part 60 and Part 61, as they exist on May 7, 1993, or their 

later enactments as adopted by reference by the director by rule. Emissions from any source 

utilizing clean fuels, or any other means, to comply with this paragraph shall not be allowed to 

increase above levels that would have been required under the definition of BACT in the Federal 

Clean Air Act as it existed prior to enactment of the Clean Air Act Amendments of 1990. 

(10) "Best available retrofit technology (BART)" means an emission limitation based on the 

degree of reduction achievable through the application of the best system of continuous emission 
Table 2 – Energy Facilities Site Evaluation Council Regulations – page 4 

reduction for each pollutant which is emitted by an existing stationary facility. The emission 

limitation must be established, on a case-by-case basis, taking into consideration the technology 

available, the costs of compliance, the energy and nonair quality environmental impacts of 

compliance, any pollution control equipment in use or in existence at the source, the remaining 

useful life of the source, and the degree of improvement in visibility which may reasonably be 

anticipated to result from the use of such technology. 

(11) "Bubble" means a set of emission limits which allows an increase in emissions from a 

given emissions unit(s) in exchange for a decrease in emissions from another emissions unit(s), 

pursuant to RCW 70.94.155 and WAC 173-400-120. 

(12) "Capacity factor" means the ratio of the average load on equipment or a machine for the 

period of time considered, to the manufacturer's capacity rating of the machine or equipment. 

(13) "Class I area" means any area designated pursuant to §§ 162 or 164 of the Federal Clean 

Air Act as a Class I area. The following areas are the Class I areas in Washington state: 

Alpine Lakes Wilderness; 

Glacier Peak Wilderness; 

Goat Rocks Wilderness; 

Mount Adams Wilderness; 

Mount Rainier National Park; 

North Cascades National Park; 

Olympic National Park; 

Pasayten Wilderness; 

Spokane Indian Reservation. 

(14) "Combustion and incineration sources" means units using combustion for waste disposal, 

steam production, chemical recovery or other process requirements; but excludes open burning. 

(15) "Commenced construction" means that the owner or operator has all the necessary 

preconstruction approvals or permits and either has: 

(a) Begun, or caused to begin, a continuous program of actual on-site construction of the source, 

to be completed within a reasonable time; or 

(b) Entered into binding agreements or contractual obligations, which cannot be cancelled or 

modified without substantial loss to the owner or operator, to undertake a program of actual 

construction of the source to be completed within a reasonable time. 

(16) "Concealment" means any action taken to reduce the observed or measured concentrations 

of a pollutant in a gaseous effluent while, in fact, not reducing the total amount of pollutant 

discharged. 

(17) "Director" means director of the Washington state department of ecology or duly 

authorized representative. 
Table 2 – Energy Facilities Site Evaluation Council Regulations – page 5 

(18) "Dispersion technique" means a method which attempts to affect the concentration of a 

pollutant in the ambient air other than by the use of pollution abatement equipment or integral 

process pollution controls. 

(19) "Ecology" means the Washington state department of ecology. 

(20) "Emission" means a release of air contaminants into the ambient air. 

(21) "Emission reduction credit (ERC)" means a credit granted pursuant to WAC 173-400-131. 

This is a voluntary reduction in emissions. 

(22) "Emission standard" and "emission limitation" means a requirement established under the 

FCAA or chapter 70.94 RCW which 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 promulgated under the FCAA or chapter 70.94 RCW. 

(23) "Emissions unit" means any part of a stationary source or source which emits or would 

have the potential to emit any pollutant subject to regulation under the FCAA, chapter 70.94 or 

70.98 RCW. 

(24) "Excess emissions" means emissions of an air pollutant in excess of any applicable 

emission standard. 

(25) "Excess stack height" means that portion of a stack which exceeds the greater of sixty-five 

meters or the calculated stack height described in WAC 173-400-200(2). 

(26) "Existing stationary facility" means a stationary source of air pollutants which has the 

potential to emit two hundred fifty tons per year or more of any air pollutant. In determining 

potential to emit, fugitive emissions, to the extent quantifiable, must be counted. For purposes of 

determining whether a stationary source is an existing stationary facility the term "building, 

structure, facility, or installation" means all of the pollutant-emitting activities which belong to 

the same industrial grouping, are located on one or more contiguous or adjacent properties, and 

are under the control of the same person (or persons under common control). Pollutant-emitting 

activities shall be considered as part of the same major group (i.e., which have the same two digit 

code) as described in the Standard Industrial Classification Manual, 1972, as amended by the 

1977 Supplement. 

(27) "Federal Clean Air Act (FCAA)" means the Federal Clean Air Act, also known as Public 

Law 88-206, 77 Stat. 392, December 17, 1963, 42 U.S.C. 7401 et seq., as last amended by the 

Clean Air Act Amendments of 1990, P.L. 101-549, November 15, 1990. 

(28) "Federal land manager" means, with respect to any lands in the United States, the Secretary 

of the department with authority over such lands. 
Table 2 – Energy Facilities Site Evaluation Council Regulations – page 6 

(29) "Fossil fuel-fired steam generator" means a device, furnace, or boiler used in the process of 

burning fossil fuel for the primary purpose of producing steam by heat transfer. 

(30) "Fugitive dust" means a particulate emission made airborne by forces of wind, man's 

activity, or both. Unpaved roads, construction sites, and tilled land are examples of areas that 

originate fugitive dust. Fugitive dust is a type of fugitive emission. 

(31) "Fugitive emissions" means emissions which do not pass and which could not reasonably 

pass through a stack, chimney, vent, or other functionally equivalent opening. 

(32) "General process unit" means an emissions unit using a procedure or a combination of 

procedures for the purpose of causing a change in material by either chemical or physical means, 

excluding combustion. 

(33) "Good engineering practice (GEP)" refers to a calculated stack height based on the equation 

specified in WAC 173-400-200 (2)(a)(ii). 

(34) "Incinerator" means a furnace used primarily for the thermal destruction of waste. 

(35) "In operation" means engaged in activity related to the primary design function of the 

source. 

(36) "Integral vista" means a view perceived from within a mandatory Class I federal area of a 

specific landmark or panorama located outside the boundary of the mandatory Class I federal 

area. 

(37) "Lowest achievable emission rate (LAER)" means for any source that rate of emissions 

which reflects the more stringent of: 

(a) The most stringent emission limitation which is contained in the implementation plan of any 

state for such class or category of source, unless the owner or operator of the proposed new or 

modified source demonstrates that such limitations are not achievable; or 

(b) The most stringent emission limitation which is achieved in practice by such class or 

category of source. 

In no event shall the application of this term permit a proposed new or modified source to emit 

any pollutant in excess of the amount allowable under applicable new source performance 

standards. 

(38) "Mandatory Class I federal area" means any area defined in Section 162(a) of the FCAA. 

The mandatory Class I federal areas in Washington state are as follows: 

Alpine Lakes Wilderness; 

Glacier Peak Wilderness; 

Goat Rocks Wilderness; 

Mount Adams Wilderness; 
Table 2 – Energy Facilities Site Evaluation Council Regulations – page 7 

Mount Rainier National Park; 

North Cascades National Park; 

Olympic National Park; 

Pasayten Wilderness; 

(39) "Major modification" means any physical change in or change in the method of operation 

of a major stationary source that would result in a significant net emissions increase of any 

pollutant subject to regulation under the FCAA. Any net emissions increase that is considered 

significant for volatile organic compounds or nitrogen oxides shall be considered significant for 

ozone. A physical change or change in the method of operation shall not include: 

(a) Routine maintenance, repair, and replacement; 

(b) Use of an alternative fuel or raw material by reason of an order under Sections 2(a) and (b) 

of the Energy Supply and Environmental Supply Coordination Act of 1974 (or any superseding 

legislation) or by reason of a natural gas curtailment plan pursuant to the Federal Power Act; 

(c) Use of an alternative fuel by reason of an order or rule under section 125 of the FCAA, 42 

U.S.C. 7425; 

(d) Use of an alternative fuel at a steam generating unit to the extent that the fuel is generated 

from municipal solid waste; 

(e) Use of an alternative fuel or raw material by a stationary source which: 

(i) The stationary source was capable of accommodating before December 21, 1976, unless such 

change would be prohibited under any federally enforceable permit condition which was 

established after December 12, 1976, in a prevention of significant deterioration permit or notice 

of construction approval; or 

(ii) The stationary source is approved to use under any federally-enforceable notice of 

construction approval or a PSD permit issued by the environmental protection agency; 

(f) An increase in the hours of operation or in the production rate, unless such change is 

prohibited under any federally enforceable permit condition which was established after 

December 21, 1976, in a prevention of significant deterioration permit or a notice of construction 

approval; 

(g) Any change in ownership at a stationary source. 

(40) "Major stationary source" means: 

(a) Any stationary source which: 

(i) Emits or has the potential to emit one hundred tons per year or more of any air contaminant 

regulated by the state or Federal Clean Air Acts; or 
Table 2 – Energy Facilities Site Evaluation Council Regulations – page 8 

(ii) Is located in a "marginal" or "moderate" ozone nonattainment area and which emits or has 

the potential to emit one hundred tons per year or more of volatile organic compounds or oxides 

of nitrogen. 

(b) Any stationary source (or group of stationary sources) which: 

(i) Is located in a "serious" carbon monoxide nonattainment area where stationary sources 

contribute significantly to carbon monoxide levels and which emits or has the potential to emit 

fifty tons per year or more of carbon monoxide; or 

(ii) Is located in a "serious" particulate matter (PM10) nonattainment area and which emits or has 

the potential to emit seventy tons per year or more of PM10 emissions. 

(c) Any physical change that would occur at a stationary source not qualifying under (a) or (b) 

of this subsection as a major stationary source, if the change would constitute a major stationary 

source by itself; 

(d) A major stationary source that is major for VOCs or NOx shall be considered major for 

ozone; 

(e) The fugitive emissions of a stationary source shall not be included in determining whether it 

is a major stationary source, unless the stationary source belongs to one of the following 

categories of stationary sources or the source is a major stationary source due to (b) of this 

subsection: 

(i) Coal cleaning plants (with thermal dryers); 

(ii) Kraft pulp mills; 

(iii) Portland cements plants; 

(iv) Primary zinc smelters; 

(v) Iron and steel mills; 

(vi) Primary aluminum ore reduction plants; 

(vii) Primary copper smelters; 

(viii) Municipal incinerators capable of charging more than two hundred fifty tons of refuse per 

day; 

(ix) Hydrofluoric, sulfuric, or nitric acid plants; 

(x) Petroleum refineries; 
Table 2 – Energy Facilities Site Evaluation Council Regulations – page 9 

(xi) Lime plants; 

(xii) Phosphate rock processing plants; 

(xiii) Coke oven batteries; 

(xiv) Sulfur recovery plants; 

(xv) Carbon black plants (furnace process); 

(xvi) Primary lead smelters; 

(xvii) Fuel conversion plants; 

(xviii) Sintering plants; 

(xix) Secondary metal production plants; 

(xx) Chemical process plants; 

(xxi) Fossil-fuel boilers (or combination thereof) totaling more than two hundred fifty million 

British thermal units per hour heat input; 

(xxii) Petroleum storage and transfer units with a total storage capacity exceeding three hundred 

thousand barrels; 

(xxiii) Taconite ore processing plants; 

(xxiv) Glass fiber processing plants; 

(xxv) Charcoal production plants; 

(xxvi) Fossil fuel-fired steam electric plants of more than two hundred fifty million British 

thermal units per hour heat input; and 

(xxvii) Any other stationary source category which, as of August 7, 1980, was being regulated 

under sections 111 or 112 of the Federal Clean Air Act. 

(f) For purposes of determining whether a stationary source is a major stationary source, the 

term "building, structure, facility, or installation" means all the pollutant-emitting activities 

which belong to the same industrial grouping, are located on one or more contiguous or adjacent 

properties, and are under the control of the same person (or persons under common control). 

Pollutant-emitting activities shall be considered as part of the same industrial grouping if they 

belong to the same major group (i.e., which have the same two digit code) as described in the 

Standard Industrial Classification Manual, 1972, as amended by the 1977 Supplement. 
Table 2 – Energy Facilities Site Evaluation Council Regulations – page 10 

(41) "Masking" means the mixing of a chemically nonreactive control agent with a malodorous 

gaseous effluent to change the perceived odor. 

(42) "Materials handling" means the handling, transporting, loading, unloading, storage, and 

transfer of materials with no significant chemical or physical alteration. 

(43) "Modification" means any physical change in, or change in the method of operation of, a 

stationary source that increases the amount of any air contaminant emitted by such source or that 

results in the emissions of any air contaminant not previously emitted. The term modification 

shall be construed consistent with the definitions of modification in Section 7411, Title 42, 

United States Code, and with rules implementing that section. 

(44) "National Emission Standards for Hazardous Air Pollutants (NESHAPS)" means the federal 

regulations set forth in 40 CFR Part 61. 

(45) "Natural conditions" means naturally occurring phenomena that reduce visibility as 

measured in terms of visual range, contrast, or coloration. 

(46) "Net emissions increase" means: 

(a) The amount by which the sum of the following exceeds zero: 

(i) Any increase in actual emissions from a particular change or change in method of operation 

at a source; and 

(ii) Any other increases and decreases in actual emissions at the source that are 

contemporaneous with the particular change and are otherwise creditable. 

(b) An increase or decrease in actual emissions is contemporaneous with the increase from the 

particular change only if it occurs between the date ten years before construction on the 

particular change commences and the date that the increase from the particular change occurs. 

(c) An increase or decrease in actual emissions is creditable only if: 

(i) It occurred no more than one year prior to the date of submittal of a complete notice of 

construction application for the particular change, or it has been documented by an emission 

reduction credit, in which case the credit shall expire ten years after the date of original issue of 

the ERC. Any emissions increases occurring between the date of issuance of the ERC and the 

date when a particular change becomes operational shall be counted against the ERC. 

(ii) Ecology or the authority has not relied on it in issuing any permit or order of approval for the 

source under regulations approved pursuant to 40 CFR 51 Subpart I or the EPA has not relied on 

it in issuing a PSD permit pursuant to 40 CFR 52.21, which order or permit is in effect when the 

increase in actual emissions from the particular change occurs. 
Table 2 – Energy Facilities Site Evaluation Council Regulations – page 11 

(d) An increase in actual emissions is creditable only to the extent that the new level of actual 

emissions exceeds the old level. 

(e) A decrease in actual emissions is creditable only to the extent that: 

(i) The old level of actual emissions or the old level of allowable emissions, whichever is lower, 

exceeds the new level of actual emissions; 

(ii) It is federally enforceable at and after the time that actual construction on the particular 

change begins; 

(iii) It has approximately the same qualitative significance for public health and welfare as that 

attributed to the increase from the particular change; and 

(iv) Ecology or the authority has not relied on it in issuing any permit or order of approval under 

regulations approved pursuant to 40 CFR 51 Subpart I, the EPA has not relied on it in issuing a 

PSD permit pursuant to 40 CFR 52.21, or ecology or the authority has not relied on it in 

demonstrating attainment or reasonable further progress. 

(f) An increase that results from a physical change at a source occurs when the emission unit on 

which construction occurred becomes operational and begins to emit a particular pollutant. Any 

replacement unit that requires shakedown becomes operational only after a reasonable 

shakedown period, not to exceed one hundred eighty days. 

(47) "New source" means: 

(a) The construction or modification of a stationary source that increases the amount of any air 

contaminant emitted by such source or that results in the emission of any air contaminant not 

previously emitted; and 

(b) Any other project that constitutes a new source under the Federal Clean Air Act. 

(48) “New source performance standards (NSPS)" means the federal regulations set forth in 40 

CFR Part 60. 

(49) "Nonattainment area" means a clearly delineated geographic area which has been 

designated by EPA promulgation as exceeding a national ambient air quality standard or 

standards for one or more of the criteria pollutants. 

(50) "Notice of construction application" means a written application to permit construction of a 

new source, modification of an existing stationary source or replacement or substantial alteration 

of control technology at an existing stationary source. 

(51) "Opacity" means the degree to which an object seen through a plume is obscured, stated as 

a percentage. 
Table 2 – Energy Facilities Site Evaluation Council Regulations – page 12 

(52) "Open burning" means the combustion of material in an open fire or in an outdoor 

container, without providing for the control of combustion or the control of the emissions from 

the combustion. Wood waste disposal in wigwam burners is not considered open burning. 

(53) "Order" means any order issued by ecology or a local air authority pursuant to chapter 

70.94 RCW, including, but not limited to RCW 70.94.332, 70.94.152, 70.94.153, and 

70.94.141(3), and includes, where used in the generic sense, the terms order, corrective action 

order, order of approval, and regulatory order. 

(54) "Order of approval" or "approval order" means a regulatory order issued by ecology or the 

authority to approve the notice of construction application for a proposed new source or 

modification, or the replacement or substantial alteration of control technology at an existing 

stationary source. 

(55) "Particulate matter" or "particulates" means any airborne finely divided solid or liquid 

material with an aerodynamic diameter smaller than 100 micrometers. 

(56) "Particulate matter emissions" means all finely divided solid or liquid material, other than 

uncombined water, emitted to the ambient air as measured by applicable reference methods, or 

an equivalent or alternative method specified in 40 CFR Part 60 or by a test method specified in 

the Washington state implementation plan. 

(57) "Parts per million (ppm)" means parts of a contaminant per million parts of gas, by volume, 

exclusive of water or particulates. 

(58) "Person" means an individual, firm, public or private corporation, association, partnership, 

political subdivision, municipality, or government agency. 

(59) "PM-10" means particulate matter with an aerodynamic diameter less than or equal to a 

nominal 10 micrometers as measured by a reference method based on 40 CFR Part 50 Appendix 

J and designated in accordance with 40 CFR Part 53 or by an equivalent method designated in 

accordance with 40 CFR Part 53. 

(60) "PM-10 emissions" means finely divided solid or liquid material, including condensible 

particulate matter, with an aerodynamic diameter less than or equal to a nominal 10 micrometers 

emitted to the ambient air as measured by an applicable reference method, or an equivalent or 

alternate method, specified in Appendix M of 40 CFR Part 51 or by a test method specified in 

the Washington state implementation plan. 

(61) "Potential to emit" means the maximum capacity of a stationary source to emit a pollutant 

under its physical and operational design. Any physical or operational limitation on the capacity 

of the source to emit a pollutant, including air pollution control equipment and restrictions on 

hours of operation or on the type or amount of material combusted, stored, or processed, shall be 

treated as part of its design only if the limitation or the effect it would have on emissions is 

federally enforceable. Secondary emissions do not count in determining the potential to emit of 

a stationary source. 
Table 2 – Energy Facilities Site Evaluation Council Regulations – page 13 

(62) "Prevention of significant deterioration (PSD)" means the program set forth in WAC 173-

400-141. 

(63) "Projected width" means that dimension of a structure determined from the frontal area of 

the structure, projected onto a plane perpendicular to a line between the center of the stack and 

the center of the building. 

(64) "Reasonably attributable" means attributable by visual observation or any other technique 

the state deems appropriate. 

(65) "Reasonably available control technology (RACT)" means the lowest emission limit 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. 

(66) "Regulatory order" means an order issued by ecology or an authority to an air contaminant 

source which applies to that source, any applicable provision of chapter 70.94 RCW, or the rules 

adopted thereunder, or, for sources regulated by a local air authority, the regulations of that 

authority. 

(67) "Significant" means, in reference to a net emissions increase or the potential of a source to 

emit any of the following pollutants, a rate of emission equal to or greater than any one of the 

following rates: 

Pollutant Tons/Year 

Carbon monoxide ............................... 100 

Nitrogen oxides ..................................... 40 

Sulfur dioxide ....................................... 40 

Particulate matter (PM) ......................... 25 

Fine particulate matter (PM10) .............. 15 

Volatile organic compounds (VOC) ..... 40 

Lead ..................................................... 0.6 

Fluorides ................................................. 3 

Sulfuric acid mist .................................... 7 

Hydrogen sulfide (H2S) ........................ .10 

Total reduced sulfur (including H2S ) ... 10 

Municipal waste combustor organics. 0.0000035 

(measured as total tetra-through octachlorinated dibenzo-p-dioxins and dibenzofurans 

Municipal waste combustor metals (measured 
Table 2 – Energy Facilities Site Evaluation Council Regulations – page 14 

Pollutant Tons/Year 

as PM) ................................................... 15 

Municipal waste combustor acid gases (measured 

as SO2 and hydrogen chloride) ............. 40 

(68) "Significant visibility impairment" means visibility impairment which interferes with the 

management, protection, preservation, or enjoyment of visitor visual experience of the Class I 

area. The determination must be made on a case-by-case basis, taking into account the 

geographic extent, intensity, duration, frequency, and time of the visibility impairment, and how 

these factors correlate with the time of visitor use of the Class I area and frequency and timing of 

natural conditions that reduce visibility. 

(69) "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 groups 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 two digit code) as described in the 

Standard Industrial Classification Manual, 1972, as amended by the 1977 Supplement. 

(70) "Source category" means all sources of the same type or classification. 

(71) "Stack" means any point in a source designed to emit solids, liquids, or gases into the air, 

including a pipe or duct. 

(72) "Stack height" means the height of an emission point measured from the ground-level 

elevation at the base of the stack. 

(73) "Standard conditions" means a temperature of 20° (68° F) and a pressure of 760 mm (29.92 

inches) of mercury. 

(74) "Stationary source" means any building, structure, facility, or installation which emits or 

may emit any contaminant. This term does not include emissions resulting directly from an 

internal combustion engine for transportation purposes or from a nonroad engine or nonroad 

vehicle as defined in Section 216 of the FCAA. 

(75) "Sulfuric acid plant" means any facility producing sulfuric acid by the contact process by 

burning elemental sulfur, alkylation acid, hydrogen sulfide, or acid sludge. 

(76) "Total reduced sulfur (TRS)" means the sum of the sulfur compounds hydrogen sulfide, 

mercaptans, dimethyl sulfide, dimethyl disulfide, and any other organic sulfides emitted and 

measured by EPA method 16 or an approved equivalent method and expressed as hydrogen 

sulfide. 

(77) "Total suspended particulate" means particulate matter as measured by the method 

described in 40 CFR Part 50 Appendix B as in effect on July 1, 1988. 
Table 2 – Energy Facilities Site Evaluation Council Regulations – page 15 

(78) "United States Environmental Protection Agency (USEPA)" shall be referred to as EPA. 

(79) "Visibility impairment" means any perceptible degradation in visibility (visual range, 

contrast, coloration) not caused by natural conditions. 

(80) "Visibility impairment of Class I areas" means visibility impairment within the area and 

visibility impairment of any formally designated integral vista associated with the area. 

(81) "Volatile organic compound (VOC)" means: 

(a) Any compound of carbon, excluding carbon monoxide, carbon dioxide, carbonic acid, 

metallic carbides or carbonates, and ammonium carbonate, which participates in atmospheric 

photochemical reactions. This includes any organic compound other than the following, which 

have negligible photochemical reactivity: Methane; ethane; methylene chloride 

(dichloromethane); 1,1,1-trichloroethane (methyl chloroform); 1,1,1-trichloro 2,2,2-

trifluoroethane (CFC-113); trichlorofluoromethane (CFC-11); dichlorodifluoromethane (CFC12); chlorodifluoromethane (CFC-22); trifluoromethane (FC-23); 1,1,2,2-tetrafluoroethane 

(CFC-114); chloropentafluoroethane (CFC-115); 1,1,1-trifluoro 2,2-dichloroethane (HCFC-123); 

1,1,1,2-tetrafluoroethane (HFC-134a); 1,1-dichloro 1-fluoroethane (HCFC-141b); 1-chloro 1,1-

difluoroethane (HCFC-142b); 2-chloro 1,1,1,2-tetrafluoroethane (HCFC-124); pentafluoroethane 

(HFC-125); 1,1,2,2-tetrafluoroethane (HFC-134); 1,1,1-trifluoroethane (HFC-143a); 1,1-

difluoroethane (HFC-152a); and perfluorocarbon compounds which fall into these classes: 

(i) Cyclic, branched, or linear completely fluorinated alkanes; 

(ii) Cyclic, branched, or linear completely fluorinated ethers with no unsaturations; and 

(iii) Sulfur containing perfluorocarbons with no unsaturations and with sulfur bonds only to 

carbon and fluorine. 

(b) For the purpose of determining compliance with emission limits, VOC will be measured by 

the appropriate methods in 40 CFR Part 60 Appendix A. Where such a method also measures 

compounds with negligible photochemical reactivity, these negligibly-reactive compounds may 

be excluded as VOC if the amount of such compounds is accurately quantified, and such 

exclusion is approved by ecology or the authority. 

(c) As a precondition to excluding these negligibly-reactive compounds as VOC or at any time 

thereafter, ecology or the authority may require an owner or operator to provide monitoring or 

testing methods and results demonstrating, to the satisfaction of ecology or the authority, the 

amount of negligibly-reactive compounds in the source's emissions. 

State effective: 9/20/93; EPA effective: 6/2/95

173-400-040 General Standards for Maximum Emissions. 
Table 2 – Energy Facilities Site Evaluation Council Regulations – page 16 

All sources and emissions units are required to meet the emission standards of this chapter. 

Where an emission standard listed in another chapter is applicable to a specific emissions unit, 

such standard will take precedent over a general emission standard listed in this chapter. When 

two or more emissions units are connected to a common stack and the operator elects not to 

provide the means or facilities to sample emissions from the individual emissions units, and the 

relative contributions of the individual emissions units to the common discharge are not readily 

distinguishable, then the emissions of the common stack must meet the most restrictive standard 

of any of the connected emissions units. Further, all emissions units are required to use 

reasonably available control technology (RACT) which may be determined for some sources or 

source categories to be more stringent than the applicable emission limitations of any chapter of 

Title 173 WAC. Where current controls are determined to be less than RACT, ecology or the 

authority shall, as provided in section 8, chapter 252, Laws of 1993, define RACT for each 

source or source category and issue a rule or regulatory order requiring the installation of RACT. 

(1) Visible emissions. No person shall cause or permit the emission for more than three 

minutes, in any one hour, of an air contaminant from any emissions unit which at the emission 

point, or within a reasonable distance of the emission point, exceeds twenty percent opacity 

except: 

(a) When the emissions occur due to soot blowing/grate cleaning and the operator can 

demonstrate that the emissions will not exceed twenty percent opacity for more than fifteen 

minutes in any eight consecutive hours. The intent of this provision is to permit the soot blowing 

and grate cleaning necessary to the operation of boiler facilities. This practice, except for testing 

and trouble shooting, is to be scheduled for the same approximate times each day and ecology or 

the authority be advised of the schedule. 

(b) When the owner or operator of a source supplies valid data to show that the presence of 

uncombined water is the only reason for the opacity to exceed twenty percent. 

(c) When two or more sources are connected to a common stack, ecology or the authority may 

allow or require the use of an alternate time period if it is more representative of normal 

operations.

(d) When an alternate opacity limit has been established per RCW 70.94.331 (2)(c).

(2) Fallout. No person shall cause or permit the emission of particulate matter from any source 

to be deposited beyond the property under direct control of the owner(s) or operator(s) of the 

source in sufficient quantity to interfere unreasonably with the use and enjoyment of the property 

upon which the material is deposited.

(3) Fugitive emissions. The owner or operator of any emissions unit engaging in materials 

handling, construction, demolition or any other operation which is a source of fugitive emission: 

(a) If located in an attainment area and not impacting any nonattainment area, shall take 

reasonable precautions to prevent the release of air contaminants from the operation. 
Table 2 – Energy Facilities Site Evaluation Council Regulations – page 17 

(b) If the emissions unit has been identified as a significant contributor to the nonattainment 

status of a designated nonattainment area, shall be required to use reasonable and available 

control methods, which shall include any necessary changes in technology, process, or other 

control strategies to control emissions of the contaminants for which nonattainment has been 

designated. 

(4) Odors. Any person who shall cause or allow the generation of any odor from any source 

which may unreasonably interfere with any other property owner's use and enjoyment of his 

property must use recognized good practice and procedures to reduce these odors to a reasonable 

minimum.

(5) Emissions detrimental to persons or property. No person shall cause or permit the emission 

of any air contaminant from any source if it is detrimental to the health, safety, or welfare of any 

person, or causes damage to property or business. 

(6) Sulfur dioxide. 

No person shall cause or permit the emission of a gas containing sulfur dioxide from any 

emissions unit in excess of one thousand ppm of sulfur dioxide on a dry basis, corrected to seven 

percent oxygen for combustion sources, and based on the average of any period of sixty 

consecutive minutes, except: 

When the owner or operator of an emissions unit supplies emission data and can demonstrate to 

ecology or the authority that there is no feasible method of reducing the concentration to less 

than one thousand ppm (on a dry basis, corrected to seven percent oxygen for combustion 

sources) and that the state and federal ambient air quality standards for sulfur dioxide will not be 

exceeded. In such cases, ecology or the authority may require specific ambient air monitoring 

stations be established, operated, and maintained by the owner or operator at mutually approved 

locations. All sampling results will be made available upon request and a monthly summary will 

be submitted to ecology or the authority.

(7) Concealment and masking. No person shall cause or permit the installation or use of any 

means which conceals or masks an emission of an air contaminant which would otherwise 

violate any provisions of this chapter. 

(8) Fugitive dust sources. 

(a) The owner or operator of a source of fugitive dust shall take reasonable precautions to 

prevent fugitive dust from becoming airborne and shall maintain and operate the source to 

minimize emissions. 

(b) The owner(s) or operator(s) of any existing source(s) of fugitive dust that has been identified 

as a significant contributor to a PM-10 nonattainment area shall be required to use reasonably 

available control technology to control emissions. Significance will be determined by the criteria 

found in WAC 173-400-113(3). 
Table 2 – Energy Facilities Site Evaluation Council Regulations – page 18 

State effective: 9/20/93; EPA effective: 6/2/95

173-400-050 Emission Standards for Combustion and Incineration Units. 

(1) Combustion and incineration emissions units must meet all requirements of WAC 173-400-

040 and, in addition, no person shall cause or permit emissions of particulate matter in excess of 

0.23 gram per dry cubic meter at standard conditions (0.1 grain/dscf), except, for an emissions 

unit combusting wood derived fuels for the production of steam. No person shall allow or permit 

the emission of particulate matter in excess of 0.46 gram per dry cubic meter at standard 

conditions (0.2 grain/dscf), as measured by EPA method 5 or approved procedures contained in 

"Source Test Manual - Procedures For Compliance Testing," state of Washington, department of 

ecology, as of July 12, 1990, on file at ecology. 

(2) For any incinerator, no person shall cause or permit emissions in excess of one hundred ppm 

of total carbonyls as measured by applicable EPA methods or acceptable procedures contained in 

"Source Test Manual - Procedures for Compliance Testing," state of Washington, department of 

ecology, on file at ecology. Incinerators shall be operated only during daylight hours unless 

written permission to operate at other times is received from ecology or the authority. 

(3) Measured concentrations for combustion and incineration sources shall be adjusted for 

volumes corrected to seven percent oxygen, except when ecology or the authority determines 

that an alternate oxygen correction factor is more representative of normal operations. 

State effective: 3/22/91; EPA effective: 9/10/93

173-400-060 Emission Standards for General Process Units. 

General process units are required to meet all applicable provisions of WAC 173-400-040 and, 

no person shall cause or permit the emission of particulate material from any general process 

operation in excess of 0.23 grams per dry cubic meter at standard conditions (0.1 grain/dscf) of 

exhaust gas. EPA test methods from 40 CFR Appendix A which are adopted by reference and 

any other approved test procedures which are contained in ecology's "Source Test Manual - 

Procedures For Compliance Testing" as of July 12, 1990, will be used to determine compliance. 

State effective: 3/22/91; EPA effective: 9/10/93

173-400-081 Startup and Shutdown. 

In promulgating technology-based emission standards and making control technology 

determinations (e.g., BACT, RACT, LAER, BART) ecology and the authorities shall consider 

any physical constraints on the ability of a source to comply with the applicable standard during 

startup or shutdown. Where ecology or the authority determines that the source or source 

category, operated and maintained in accordance with good air pollution control practice, is not 

capable of achieving continuous compliance with an emission standard during startup or 
Table 2 – Energy Facilities Site Evaluation Council Regulations – page 19 

shutdown, ecology or the authority shall include in the standard appropriate emission limitations, 

operating parameters, or other criteria to regulate the performance of the source during startup or 

shutdown conditions. In modeling the emissions of a source for purposes of demonstrating 

attainment or maintenance of national ambient air quality standards, ecology and the authorities 

shall take into account any incremental increase in allowable emissions under startup or 

shutdown conditions authorized by an emission limitation or other operating parameter adopted 

under this rule. Any emission limitation or other parameter adopted under this rule which 

increases allowable emissions during startup or shutdown conditions over levels authorized in an 

approved state implementation plan shall not take effect until approved by EPA as a SIP 

amendment. 

State effective: 9/20/93; EPA effective: 6/2/95

173-400-091 Voluntary Limits on Emissions. 

(1) Upon request by the owner or operator of a source, ecology or the authority with jurisdiction 

over the source shall issue a regulatory order that limits the source's potential to emit any air 

contaminant or contaminants to a level agreed to by the owner or operator and ecology or the 

authority with jurisdiction over the source. 

(2) A condition contained in an order issued under this section shall be less than the source's 

otherwise allowable annual emissions of a particular contaminant under all applicable 

requirements of the chapter 70.94 RCW and the FCAA, including any standard or other 

requirement provided for in the Washington state implementation plan. The term "condition" 

refers to limits on production or other limitations, in addition to emission limitations. 

(3) Any order issued under this section shall include monitoring, recordkeeping and reporting 

requirements sufficient to ensure that the source complies with any condition established under 

this section. Monitoring requirements shall use terms, test methods, units, averaging periods, 

and other statistical conventions consistent with the requirements of WAC 173-400-105. 

(4) Any order issued under this section shall be subject to the notice and comment procedures 

under WAC 173-400-171. 

(5) The terms and conditions of a regulatory order issued under this section shall be federally 

enforceable, upon approval of this section as an element of the Washington state implementation 

plan. Any proposed deviation from a condition contained in an order issued under this section 

shall require revision or revocation of the order. 

State effective: 9/20/93; EPA effective: 6/2/95 

173-400-105 Records, Monitoring, and Reporting. 

The owner or operator of a source shall upon notification by the director of ecology, maintain 
Table 2 – Energy Facilities Site Evaluation Council Regulations – page 20 

records on the type and quantity of emissions from the source and other information deemed 

necessary to determine whether the source is in compliance with applicable emission limitations 

and control measures. 

(1) Emission inventory. The owner(s) or operator(s) of any air contaminant source shall submit 

an inventory of emissions from the source each year. The inventory may include stack and 

fugitive emissions of particulate matter, PM10, sulfur dioxide, carbon monoxide, total reduced 

sulfur compounds (TRS), fluorides, lead, VOCs, and other contaminants, and shall be submitted 

(when required) no later than one hundred five days after the end of the calendar year. The 

owner(s) or operator(s) shall maintain records of information necessary to substantiate any 

reported emissions, consistent with the averaging times for the applicable standards. 

(2) Monitoring. Ecology shall conduct a continuous surveillance program to monitor the quality 

of the ambient atmosphere as to concentrations and movements of air contaminants. 

As a part of this program, the director of ecology or an authorized representative may require any 

source under the jurisdiction of ecology to conduct stack and/or ambient air monitoring and to 

report the results to ecology. 

(3) Investigation of conditions. Upon presentation of appropriate credentials, for the purpose of 

investigating conditions specific to the control, recovery, or release of air contaminants into the 

atmosphere, personnel from ecology or an authority shall have the power to enter at reasonable 

times upon any private or public property, excepting nonmultiple unit private dwellings housing 

one or two families. 

(4) Source testing. To demonstrate compliance, ecology or the authority may conduct or require 

that a test be conducted of the source using approved EPA methods from 40 CFR 60 Appendix A 

which are adopted by reference, or approved procedures contained in "Source Test Manual - 

Procedures for Compliance Testing," state of Washington, department of ecology, as of July 12, 

1990, on file at ecology. The operator of a source may be required to provide the necessary 

platform and sampling ports for ecology personnel or others to perform a test of an emissions 

unit. Ecology shall be allowed to obtain a sample from any emissions unit. The operator of the 

source shall be given an opportunity to observe the sampling and to obtain a sample at the same 

time. 

(5) Continuous monitoring and recording. Owners and operators of the following categories of 

sources shall install, calibrate, maintain and operate equipment for continuously monitoring and 

recording those emissions specified. 

(a) Fossil fuel-fired steam generators. 

(i) Opacity, except where: 

(A) Steam generator capacity is less than two hundred fifty million BTU per hour heat input; or 

(B) Only gaseous fuel is burned. 
Table 2 – Energy Facilities Site Evaluation Council Regulations – page 21 

(ii) Sulfur dioxide, except where steam generator capacity is less than two hundred fifty million 

BTU per hour heat input or if sulfur dioxide control equipment is not required. 

(iii) Percent oxygen or carbon dioxide where such measurements are necessary for the 

conversion of sulfur dioxide continuous emission monitoring data. 

(iv) General exception. These requirements do not apply to a fossil fuel-fired steam generator 

with an annual average capacity factor of less than thirty percent, as reported to the Federal 

Power Commission for calendar year 1974, or as otherwise demonstrated to ecology or the 

authority by the owner(s) or operator(s). 

(b) Sulfuric acid plants. 

Sulfur dioxide where production capacity is more than three hundred tons per day, expressed as 

one hundred percent acid, except for those facilities where conversion to sulfuric acid is utilized 

primarily as a means of preventing emissions to the atmosphere of sulfur dioxide or other sulfur 

compounds. 

(c) Fluid bed catalytic cracking units catalyst regenerators at petroleum refineries. 

Opacity where fresh feed capacity is more than twenty thousand barrels per day. 

(d) Wood residue fuel-fired steam generators. 

(i) Opacity, except where steam generator capacity is less than one hundred million BTU per 

hour heat input. 

(ii) Continuous monitoring equipment. The requirements of (e) of this subsection do not apply 

to wood residue fuel-fired steam generators, but continuous monitoring equipment required by 

(d) of this subsection shall be subject to approval by ecology. 

(e) Owners and operators of those sources required to install continuous monitoring equipment 

under this chapter shall demonstrate to ecology or the authority, compliance with the equipment 

and performance specifications and observe the reporting requirements contained in 40 CFR Part 

51, Appendix P, Sections 3, 4 and 5, promulgated October 6, 1975, and amended November 7, 

1986, which is adopted by reference. 

(f) Special considerations. If for reason of physical plant limitations or extreme economic 

situations, ecology determines that continuous monitoring is not a reasonable requirement, 

alternative monitoring and reporting procedures will be established on an individual basis. These 

will generally take the form of stack tests conducted at a frequency sufficient to establish the 

emission levels over time and to monitor deviations in these levels. 

(g) Exemptions. This subsection (5) does not apply to any source which is: 

(i) Subject to a new source performance standard. These sources will be governed by WAC 
Table 2 – Energy Facilities Site Evaluation Council Regulations – page 22 

173-400-115. 

(ii) Not subject to an applicable emission standard. 

(h) Monitoring system malfunctions. A source may be temporarily exempted from the 

monitoring and reporting requirements of this chapter during periods of monitoring system 

malfunctions provided that the source owner(s) or operator(s) shows to the satisfaction of 

ecology or the authority that the malfunction was unavoidable and is being repaired as 

expeditiously as practicable. 

(6) Change in raw materials or fuels for sources not subject to requirements of the operating 

permit program. Any change or series of changes in raw material or fuel which will result in a 

cumulative increase in emissions of sulfur dioxide of forty tons per year or more over that stated 

in the initial inventory required by subsection (1) of this section shall require the submittal of 

sufficient information to ecology or the authority to determine the effect of the increase upon 

ambient concentrations of sulfur dioxide. Ecology or the authority may issue regulatory orders 

requiring controls to reduce the effect of such increases. Cumulative changes in raw material or 

fuel of less than 0.5 percent increase in average annual sulfur content over the initial inventory 

shall not require such notice. 

State effective: 9/20/93; EPA effective: 6/2/95

173-400-107 Excess Emissions. 

(1) The owner or operator of a source shall have the burden of proving to ecology or the 

authority or the decision-making authority in an enforcement action that excess emissions were 

unavoidable. This demonstration shall be a condition to obtaining relief under subsections (4), 

(5) and (6) of this section. 

(2) Excess emissions determined to be unavoidable under the procedures and criteria in this 

section shall be excused and not subject to penalty. 

(3) Excess emissions which represent a potential threat to human health or safety or which the 

owner or operator of the source believes to be unavoidable shall be reported to ecology or the 

authority as soon as possible. Other excess emissions shall be reported within thirty days after 

the end of the month during which the event occurred or as part of the routine emission 

monitoring reports. Upon request by ecology or the authority, the owner(s) or operator(s) of the 

source(s) shall submit a full written report including the known causes, the corrective actions 

taken, and the preventive measures to be taken to minimize or eliminate the chance of 

recurrence. 

(4) Excess emissions due to startup or shutdown conditions shall be considered unavoidable 

provided the source reports as required under subsection (3) of this section and adequately 

demonstrates that the excess emissions could not have been prevented through careful planning 

and design and if a bypass of control equipment occurs, that such bypass is necessary to prevent 
Table 2 – Energy Facilities Site Evaluation Council Regulations – page 23 

loss of life, personal injury, or severe property damage. 

(5) Maintenance. Excess emissions due to scheduled maintenance shall be considered 

unavoidable if the source reports as required under subsection (3) of this section and adequately 

demonstrates that the excess emissions could not have been avoided through reasonable design, 

better scheduling for maintenance or through better operation and maintenance practices. 

(6) Excess emissions due to upsets shall be considered unavoidable provided the source reports 

as required under subsection (3) of this section and adequately demonstrates that: 

(a) The event was not caused by poor or inadequate design, operation, maintenance, or any other 

reasonably preventable condition; 

(b) The event was not of a recurring pattern indicative of inadequate design, operation, or 

maintenance; and 

(c) The operator took immediate and appropriate corrective action in a manner consistent with 

good air pollution control practice for minimizing emissions during the event, taking into 

account the total emissions impact of the corrective action, including slowing or shutting down 

the emission unit as necessary to minimize emissions, when the operator knew or should have 

known that an emission standard or permit condition was being exceeded. 

State effective: 9/20/93; EPA effective: 6/2/95

173-400-110 New Source Review (NSR) 

(1) Applicability

(a) A notice of construction application must be filed by the owner or operator and an order of 

approval issued by ecology or an authority prior to the establishment of any new source or 

emission unit or modification which is listed in WAC 173-400-100 or required to obtain a permit 

under RCW 70.94.161. 

(b) Ecology or the authority may require that a notice of construction application be filed by the 

owner or operator of a proposed new source or modification and an order of approval issued by 

ecology or an authority prior to the establishment of any new source or emission unit or 

modification, other than a single family or a duplex dwelling. 

(c) New source review of a modification shall be limited to the emission unit or units proposed 

to be added to an existing source or modified and the air contaminants whose emissions would 

increase as a result of the modification. 

(2) Completeness Determination Within thirty days of receipt of a notice of construction 

application, ecology or the authority shall either notify the applicant in writing that the 

application is complete or notify the applicant in writing of all additional information necessary, 
Table 2 – Energy Facilities Site Evaluation Council Regulations – page 24 

based upon review of information already supplied, to complete the application. For a project 

subject to PSD review under WAC 173-400-141 a completeness determination includes a 

determination that the application provides all information required to conduct PSD review. 

(3) Final Determination 

(a) Within sixty days of receipt of a complete application, ecology or the authority shall either 

issue a final decision on the application or, for those projects subject to public notice, initiate 

notice and comment procedures under WAC 173-400-171 on a proposed decision, followed as 

promptly as possible by a final decision. A person seeking approval to construct or modify a 

source that requires an operating permit may elect to integrate review of the operating permit 

application or amendment required under RCW 70.94.161 and the notice of construction 

application required by this section. A notice of construction designated for integrated review 

shall be processed in accordance with operating permit program procedures and deadlines. 

(b) Every final determination on a notice of construction application shall be reviewed and 

signed prior to issuance by a professional engineer or staff under the direct supervision of a 

professional engineer in the employ of ecology or the authority. 

(c) If the new source is a major stationary source or the change is a major modification, ecology 

or the authority shall submit any control technology determination included in a final order of 

approval to the RACT/BACT/LAER clearinghouse maintained by EPA. 

(4) Appeals An order of approval, any conditions contained in an order of approval, or the 

denial of a notice of construction application may be appealed to the pollution control hearings 

board as provided in chapter 43.21B RCW. Ecology or the authority shall promptly mail copies 

of each order approving or denying a notice of construction application to the applicant and to 

any other party who submitted timely comments on the application, along with a notice advising 

parties of their rights of appeal to the Pollution Control Hearings Board and, where applicable, to 

the EPA Environmental Appeals Board. 

(5) Portable Sources For portable sources which located temporarily at particular sites, the 

owner(s) or operator(s) shall be allowed to operate at the temporary location without filing a 

notice of construction application, providing that the owner(s) or operator(s) notifies ecology or 

the authority of intent to operate at the new location at least thirty days prior to starting the 

operation, and supplies sufficient information to enable ecology or the authority to determine that 

the operation will comply with the emission standards for a new source, and will not a cause a 

violation of applicable ambient air quality standards and , if in a nonattainment area, will not 

interfere with scheduled attainment of ambient standards. The permission to operate shall be for 

a limited period of time (one year or less) and ecology or the authority may set specific 

conditions for operation during that period. A temporary source shall be required to comply with 

all applicable emission standards. 

(6) Approval to construct or modify a stationary source shall become invalid if construction is 

not commenced within eighteen months after receipt of such approval, if construction is 

discontinued for a period of eighteen months or more, or if construction is not completed within 
Table 2 – Energy Facilities Site Evaluation Council Regulations – page 25 

a reasonable time. Ecology or the authority may extend the eighteen-month period upon a 

satisfactory showing that an extension is justified. This provision does not apply to the time 

period between construction of the approved phases of a phased construction project; each phase 

must commence construction within eighteen months of the projected and approved 

commencement date. 

State effective: 9/20/93; EPA effective: 6/2/95

WAC 173-400-112 Requirements for New Sources in Nonattainment Areas. 

Ecology or an authority reviewing an application to establish a new source or modification in a 

nonattainment area, shall issue an order of approval, which order shall contain such conditions as 

are reasonably necessary to assure the maintenance of compliance with this chapter, if they 

determine that the proposed project satisfies each of the following requirements: 

(1) The proposed new source or modification will comply with all applicable new source 

performance standards, national emission standards for hazardous air pollutants, emission 

standards adopted under chapter 70.94 RCW and, for sources regulated by an authority, the 

applicable emission standards of that authority. 

(2) The proposed new source will employ BACT for all air contaminants, except that if the new 

source is a major stationary source or the proposed modification is a major modification it will 

achieve LAER for the contaminants for which the area has been designated nonattainment and 

for which the proposed new source or modification is major. 

(3) The proposed new source will not cause any ambient air quality standard to be exceeded, will 

not violate the requirements for reasonable further progress established by the state 

implementation plan and will comply with WAC 173-400-113(3) for all contaminants for which 

the area has not been designated nonattainment. 

(4) If the proposed new source is a major stationary source or the proposed modification is a 

major modification, ecology or the authority has determined, based on review of an analysis 

performed by the source of alternative sites, sizes, production processes, and environmental 

control techniques, that the benefits of the project significantly outweigh the environmental and 

social costs imposed as a result of its location, construction, or modification. 

(5) If the proposed new source or the proposed modification is major for the contaminant for 

which the area is designated nonattainment, allowable emissions from the proposed new source 

or modification of that contaminant are offset by reductions in actual emissions from existing 

sources in the nonattainment area. Emission offsets must be sufficient to ensure that total 

allowable emissions from existing major stationary sources in the nonattainment area, new or 

modified sources which are not major stationary sources, and the proposed new or modified 

source will be less than total actual emissions from existing sources (prior to submittal of the 

application) so as to represent (when considered together with the nonattainment provisions of 

section 172 of the FCAA) reasonable further progress. All offsetting emission reductions must 
Table 2 – Energy Facilities Site Evaluation Council Regulations – page 26 

satisfy the following requirements: 

(a) The proposed new level of allowable emissions of the source or emission unit(s) providing 

the reduction must be less than the current level of actual emissions of that source or emissions 

unit(s). No emission reduction can be credited for actual emissions which exceed the current 

allowable emissions of the source or emissions unit(s) providing the reduction. Emission 

reductions imposed by local, state, or federal regulations, regulatory orders, or permits cannot be 

credited. 

(b) The emission reductions must provide for a net air quality benefit. For marginal ozone 

nonattainment areas, the total emissions of volatile organic compounds or total emissions of 

nitrogen oxides are reduced by a ratio of 1.1 to 1 for the area in which the new source is located. 

For any other nonattainment area, the emissions offsets must provide a positive net air quality 

benefit in the nonattainment area. Determinations on whether emissions offsets provide a 

positive net air quality benefit will be made in accordance with the guidelines contained in 40 

CFR 51 Appendix S. 

(c) If the offsets are provided by another source, the reductions in emissions from that source 

must be federally enforceable by the time the new or modified source commences operation. 

The new source may not commence operation before the date such reductions are actually 

achieved. An emission reduction credit issued under WAC 173-400-131 may be used to satisfy 

some or all of the offset requirements of this subsection. 

(6) If the proposed new source is a major stationary source or the proposed modification is a 

major modification, the owner or operator has demonstrated that all major stationary sources 

owned or operated by such person (or by any entity controlling, controlled by, or under common 

control with such person) in Washington are subject to emission limitations and are in 

compliance, or on a schedule for compliance, with all applicable emission limitations and 

standards under the Federal Clean Air Act, including all rules contained in an EPA-approved 

state implementation plan. 

(7) If the proposed new source is a major stationary source or the proposed modification is a 

major modification for the purposes of the PSD program described in WAC 173-400-141, it 

meets the requirements of that program for all contaminants for which the area has not been 

designated nonattainment. 

(8) If the proposed new source or modification will emit any toxic air pollutants regulated under 

chapter 173-460 WAC, the source meets all applicable requirements of that chapter.

(9) If the proposed new source is a major stationary source or the proposed modification is a 

major modification, ecology or the authority has complied with the visibility protection review 

requirements of 40 CFR 52.28(c) through (e) except for (c)(4)(i), (g), and (h), as in effect on 

March 3, 1993, and determined that the project meets the criteria set forth in 40 CFR 52.28(g). 

For purposes of this subsection, definitions referenced in 40 CFR 52.28(b) are incorporated by 

reference, except that the term "visibility protection area" means any Class I area, and terms 

defined in WAC 173-400-030 shall have the meanings defined in that section. References in 40 
Table 2 – Energy Facilities Site Evaluation Council Regulations – page 27 

CFR 52.28 to "the Administrator" shall mean the agency (either ecology or the authority) 

processing the notice of construction application. 

State effective: 9/20/93; EPA effective: 6/2/95

173-400-113 Requirements for New Sources in Attainment or Unclassifiable Areas. 

Ecology or an authority reviewing an application to establish a new source or modification in an 

area that is in attainment or unclassifiable for any air contaminant the new source would emit and 

that is in attainment or unclassifiable for ozone if the proposed new or modified source would 

emit VOCs or NOX, shall issue an order of approval, which order shall contain such conditions as 

are reasonably necessary to assure the maintenance of compliance with this chapter, if they 

determine that the proposed project satisfies all of the following requirements: 

(1) The proposed new source or modification will comply with all applicable new source 

performance standards, national emission standards for hazardous air pollutants, emission 

standards adopted under chapter 70.94 RCW and, for sources regulated by an authority, the 

applicable emission standards of that authority. 

(2) The proposed new source or modification will employ BACT for all pollutants not 

previously emitted or whose emissions would increase as a result of the new source or 

modification. 

(3) Allowable emissions from the proposed new source or modification will not delay the 

attainment date for an area not in attainment nor cause or contribute to a violation of any ambient 

air quality standard. This requirement will be considered to be met if the projected impact of the 

allowable emissions from the proposed new source or the projected impact of the increase in 

allowable emissions from the proposed modification at any location within a nonattainment area 

does not exceed the following levels for the pollutant(s) for which the area has been designated 

nonattainment: 

Pollutant 

Annual 

Average 

24-Hour 

Average 

8-Hour 

Average 

3-Hour 

Average 

1-Hour 

Average 

CO- - 0.5 mg/m3 2 mg/m3

SO2 1.0 ug/m3

 5 ug/m3 - 25 ug/m3 30 ug/m3

PM10 1.0 ug/m3

 5 ug/m3 - - - 

NO2 1.0 ug/m3 - - - - 

An offsetting emission reduction may be used to satisfy some or all of the requirements of this 

subsection. 

(4) If the proposed new source is a major stationary source or the proposed modification is a 

major modification for purposes of the PSD program described in WAC 173-400-141, it meets 

all applicable requirements of that chapter. 
Table 2 – Energy Facilities Site Evaluation Council Regulations – page 28 

(5) If the proposed new source or the proposed modification will emit any toxic air pollutants 

regulated under chapter 173-460 WAC, the source meets all applicable requirements of that 

program.

(6) If, within the meaning of the PSD program described in WAC 173-400-141, the proposed 

new source is a major stationary source or the proposed modification is a major modification, 

ecology or the authority has complied with the visibility protection review requirements of 40 

CFR 52.27(d) through (f), as in effect on March 3, 1993, and has determined that the source 

would not cause an adverse impact upon visibility. References in 40 CFR 52.27 to "the 

Administrator" shall mean the agency (either ecology or the authority) processing the notice of 

construction application. 

State effective: 9/20/93; EPA effective: 6/2/95

173-400-151 Retrofit Requirements for Visibility Protection. 

(1) Determination of best available retrofit technology (BART). Ecology shall identify and 

analyze each source which may reasonably be anticipated to cause or contribute to impairment of 

visibility in any mandatory Class I area in Washington and any adjacent state and to determine 

BART for the contaminant of concern and those additional air pollution control technologies that 

are to be required to reduce impairment from the source. 

(2) Initially defined BART. The owner(s) or operator(s) of any source(s) to which significant 

visibility impairment of a mandatory Class I area is reasonably attributable shall apply BART for 

each contaminant contributing to visibility impairment that is emitted at more than 250 tons per 

year. Each source for which BART is required must install and operate BART as expeditiously 

as possible, but in no case later than five years after the conditions are included in a regulatory 

order. 

(3) Future definitions of BART. The owner(s) or operator(s) of any source(s) to which 

significant visibility impairment of a mandatory Class I area is reasonably attributable shall 

apply BART as new technology becomes available for a contaminant if: 

(a) The source emits more than 250 tons per year of the contaminant; and, 

(b) The controls representing BART have not previously been required in this section. 

(4) Appeal. Any source owner or operator required by this section to install, operate, and 

maintain BART, may apply to the EPA administrator for an exception from that requirement 

pursuant to 40 CFR 51.303. 

State effective: 3/22/91; EPA effective: 6/2/95

173-400-161 Compliance Schedules. 
Table 2 – Energy Facilities Site Evaluation Council Regulations – page 29 

(1) Issuance. Whenever a source is found to be in violation of an emission standard or other 

provision of this chapter, ecology or the authority may issue a regulatory order requiring that the 

source be brought into compliance within a specified time. The order shall contain a schedule 

for installation, with intermediate benchmark dates and a final completion date, and shall 

constitute a compliance schedule. Requirements for public involvement (WAC 173-400-171) 

must be met. 

(2) Federal action. A source shall be considered to be in compliance with this chapter if all the 

provisions of its individual compliance schedule included with a regulatory order are being met. 

Such compliance does not preclude federal enforcement action by the EPA until and unless the 

schedule is submitted and adopted as an amendment to the state implementation plan. 

(3) Penalties for delayed compliance. Sources on a compliance schedule but not meeting 

emissions standards may be subject to penalties as provided in the Federal Clean Air Act. 

State effective: 3/22/91; EPA effective: 6/2/95

173-400-171 Public Involvement. 

(1) Applicability. 

Ecology or the authority shall provide public notice prior to the approval or denial of any of the 

following types of applications or other actions: 

(a) Notice of construction application for any new or modified source or emissions unit, if a 

significant net increase in emissions of any pollutant regulated by state or federal law would 

result; or 

(b) Any application or other proposed action for which a public hearing is required by PSD 

rules; or 

(c) Any order to determine RACT; or 

(d) An order to establish a compliance schedule or a variance; or 

(e) The establishment or disestablishment of a nonattainment area, or the changing of the 

boundaries thereof; or 

(f) An order to demonstrate the creditable height of a stack which exceeds the GEP formula 

height and sixty-five meters, by means of a fluid model or a field study, for the purposes of 

establishing an emission limitation; or 

(g) An order to authorize a bubble; or 
Table 2 – Energy Facilities Site Evaluation Council Regulations – page 30 

(h) Notice of construction application or regulatory order used to establish a creditable emission 

reduction; 

(i) An order issued under WAC 173-400-090 which establishes limitations on a source's 

potential to emit; or 

(j) Any application or other proposed action made pursuant to this chapter in which there is a 

substantial public interest according to the discretion of ecology or the authority. 

(2) Public notice. Public notice shall be made only after all information required by ecology or 

the authority has been submitted and after applicable preliminary determinations, if any, have 

been made. The cost of providing public notice shall be borne by the applicant or other initiator 

of the action. Public notice shall include: 

(a) Availability for public inspection in at least one location near the proposed project, of the 

nonproprietary information submitted by the applicant and of any applicable preliminary 

determinations, including analyses of the effect(s) on air quality. 

(b) Publication in a newspaper of general circulation in the area of the proposed project of 

notice: 

(i) Giving a brief description of the proposal; 

(ii) Advising of the location of the documents made available for public inspection; 

(iii) Advising of a thirty-day period for submitting written comment to ecology or the authority; 

(iv) Advising that a public hearing may be held if ecology or the authority determines within a 

thirty-day period that significant public interest exists. 

(c) A copy of the notice will be sent to the EPA regional administrator. 

Public participation procedures for notice of construction applications that are processed in 

coordination with an application to issue or modify an operating permit shall be conducted as 

provided in the state operating permit rule. 

(3) Public comment. No final decision on any application or action of any of the types 

described in subsection (1) of this section, shall be made until the public comment period has 

ended and any comments received have been considered. Unless a public hearing is held, the 

public comment period shall be the thirty-day period for written comment published as provided 

above. If a public hearing is held the public comment period shall extend through the hearing 

date and thereafter for such period, if any, as the notice of public hearing may specify. 

(4) Public hearings. The applicant, any interested governmental entity, any group or any 

person may request a public hearing within the thirty-day period published as above. Any such 

request shall indicate the interest of the entity filing it and why a hearing is warranted. Ecology 
Table 2 – Energy Facilities Site Evaluation Council Regulations – page 31 

or the authority may, in its discretion, hold a public hearing if it determines significant public 

interest exists. Any such hearing shall be held upon such notice and at a time(s) and place(s) as 

ecology or the authority deems reasonable. 

(5) Other requirements of law. Whenever procedures permitted or mandated by law will 

accomplish the objectives of public notice and opportunity for comment, such procedures may be 

used in lieu of the provisions of this section. 

(6) Public information. Copies of notices of construction, orders, and modifications thereof 

which are issued hereunder shall be available for public inspection on request at ecology or the 

authority. 

State effective: 9/20/93; EPA effective: 6/2/95

173-400-190 Requirements for Nonattainment Areas. 

The development of specific requirements for nonattainment areas shall include consultation 

with local government in the area and shall include public involvement per WAC 173-400-171. 

State effective: 3/22/91; EPA effective: 6/2/95 

173-400-200 Creditable Stack Height and Dispersion Techniques. 

(1) Applicability. These provisions shall apply to all sources except: 

(a) Stacks for which construction had commenced on or before December 31, 1970, except 

where pollutants are being emitted from such stacks used by sources which were constructed, or 

reconstructed, or for which major modifications were carried out after December 31, 1970; 

(b) Coal-fired steam electric generating units subject to the provisions of Section 118 of the 

Federal Clean Air Act, which commenced operation before July 1, 1957, and for whose stacks 

construction commenced before February 8, 1974; 

(c) Flares; 

(d) Open burning for agricultural or silvicultural purposes as covered under the smoke 

management plan; 

(e) Residential wood combustion and open burning for which episodic restrictions apply. 

These provisions shall not be construed to limit the actual stack height. 

(2) Prohibitions. No source may use dispersion techniques or excess stack height to meet 

ambient air quality standards or PSD increment limitations. 
Table 2 – Energy Facilities Site Evaluation Council Regulations – page 32 

(a) Excess stack height. Excess stack height is that portion of a stack which exceeds the greater 

of: 

(i) Sixty-five meters, measured from the ground level elevation at the base of the stack; or 

(ii) Hg.= H.+ 1.5L 

where: Hg.= "good engineering practice" (GEP) stack height, measured from the ground level 

elevation at the base of the stack, 

H.= height of nearby structure(s) measured from the ground level elevation at the base of the 

stack, 

L.= lesser dimension, height or projected width, of nearby structure(s), subject to the proviso 

below. 

"Nearby," as used in this subsection for purposes of applying the GEP formula means that 

distance up to five times the lesser of the height or the width dimension of a structure, but not 

greater than 0.8 kilometer (1/2 mile). 

(b) Dispersion techniques. Increasing final exhaust gas plume rise by manipulating source 

process parameters, exhaust gas parameters, stack parameters, or combining exhaust gases from 

several existing stacks into one stack; or other selective handling of exhaust gas streams so as to 

increase the exhaust gas plume rise. This does not include: 

(i) The reheating of a gas stream, following the use of a pollution control system, for the purpose 

of returning the gas to the temperature at which it was originally discharged from the facility 

generating the gas stream; 

(ii) The merging of gas streams where: 

(A) The source was originally designed and constructed with such merged gas streams, as 

demonstrated by the source owner(s) or operator(s). 

(B) Such merging is part of a change in operation at the facility that includes the installation of 

pollution controls and is accompanied by a net reduction in the allowable emissions of a 

pollutant. This exclusion shall apply only to the emission limitation for the pollutant affected by 

such change in operation. 

(C) Before July 8, 1985, such merging was part of a change in operation at the facility that 

included the installation of emissions control equipment or was carried out for sound economic 

or engineering reasons, and not primarily motivated by an intent to gain emissions credit for 

greater dispersion. 

(3) Exception. EPA, ecology, or an authority may require the use of a field study or fluid model 
Table 2 – Energy Facilities Site Evaluation Council Regulations – page 33 

to verify the creditable stack height for the source. This also applies to a source seeking credit 

after the effective date of this rule for an increase in existing stack height up to that established 

by the GEP formula. A fluid model or field study shall be performed according to the 

procedures described in the EPA Guideline for Determination of Good Engineering Practice 

Height (Technical Support Document of the Stack Height Regulations). The creditable height 

demonstrated by a fluid model or field study shall ensure that the emissions from a stack do not 

result in excessive concentrations of any air pollutant as a result of atmospheric downwash, 

wakes, or eddy effects created by the source itself, nearby structures or nearby terrain features. 

(a) "Nearby," as used in this subsection for conducting a field study or fluid model, means not 

greater than 0.8 km, except that the portion of a terrain feature may be considered to be nearby 

which falls within a distance of up to ten times the maximum height of the feature, not to exceed 

two miles if such feature achieves a height 0.8 km from the stack that is at least forty percent of 

the GEP stack height or twenty-six meters, whichever is greater, as measured from the groundlevel elevation at the base of the stack. The height of the structure or terrain feature is measured 

from the ground-level elevation at the base of the stack. 

(b) "Excessive concentration" is defined for the purpose of determining creditable stack height 

under this subsection and means a maximum ground-level concentration owing to a significant 

downwash effect which contributes to excursion over an ambient air quality standard. For 

sources subject to PSD review (WAC 173-400-141 and 40 CFR 52.21) an excessive 

concentration alternatively means a maximum ground-level concentration owing to a significant 

downwash effect which contributes to excursion over a PSD increment. The emission rate used 

in this demonstration shall be the emission rate specified in the state implementation plan, or in 

the absence of such, the actual emission rate of the source. "Significant downwash effect" means 

a maximum ground-level concentration due to emissions from a stack due in whole or in part to 

downwash, wakes, and eddy effects produced by nearby structures or nearby terrain features 

which individually is at least forty percent in excess of the maximum concentration experienced 

in the absence of such downwash, wakes, or eddy effects. 

State effective: 3/22/91; EPA effective: 6/2/95

173-400-205 Adjustment for Atmospheric Conditions. 

Varying the rate of emission of a pollutant according to atmospheric conditions or ambient 

concentrations of that pollutant is prohibited, except as directed according to air pollution 

episode regulations. 

State effective: 3/22/91; EPA effective: 6/2/95

WAC 463-39-010 PURPOSE. 
Table 2 – Energy Facilities Site Evaluation Council Regulations – page 34 

The energy facility site evaluation council, under the authority vested in it by chapter 80.50 and 

40 C.F.R. Part 52 is charged with responsibilities for the conduct of a state-wide program of air 

pollution prevention and control for energy facilities. This regulation provides the basic 

framework for carrying out the council's responsibilities for such a program through the 

establishment of standards for maximum permissible emissions, the implementation of 

registration and notice requirements, provision for monitoring and reporting, and the 

identification of regulatory actions which may be taken to enforce standards. This chapter is 

designed to operate within the statutory framework for the distribution of responsibilities 

between state, regional and local units of government in dealing with problems of air pollution. 

State effective: 5/3/92 EPA effective: 7/22/96

WAC 463-39-020 APPLICABILITY. 

The provisions of this chapter shall apply state-wide for those sources under the jurisdiction of 

the energy facility site evaluation council. The provisions of this chapter shall not apply to those 

facilities incorporated by reference in chapters 173-400, 173-401, 173-406, and 173-460 WAC 

which are not under the jurisdiction of the energy facility site evaluation council. 

State effective: 9/21/95 EPA effective: 7/22/96

WAC 463-39-030 ADDITIONAL DEFINITIONS. 

(1) "Council" means the energy facility site evaluation council. 

(2) In addition to the definitions contained in WAC 173-400-030, 173-401-200, 173-406-101, 

"ecology" and "authority" shall be synonymous with the energy facility site evaluation council 

unless a different meaning is plainly required by context. 

State effective: 9/21/95 EPA effective: 7/22/96

WAC 463-39-095 PERMIT ISSUANCE. 

Permit(s) issued for air emissions in accordance with chapters 173-400, 173-401, 173-406, and 

173-460 WAC shall become an attachment(s) to a site certification agreement. For new energy 

facilities the permit(s) shall be effective upon the governor’s approval and execution of the site 

certification agreement. 

State effective: 9/21/95 EPA effective: 7/22/96

WAC 463-39-100 REGISTRATION. 

(1) The owner or operator of each stationary source subject to chapter 80.50 RCW shall register 
Table 2 – Energy Facilities Site Evaluation Council Regulations – page 35 

the source with the council. 

Registration shall be on forms which have been adopted for use by the department of ecology 

within the time specified thereon. 

A report of closure shall be filed with the council within ninety days after operations producing 

emissions permanently ceased at any source within the council's jurisdiction. 

(2) The council shall ensure that the following, as it pertains to sources covered under this rule, 

is passed on to ecology in a timely manner for inclusion in its permit register: 

(a) Public meetings or hearings on draft operating permits; 

(b) Receipt of complete applications; 

(c) Permit appeals; 

(d) Issuance or denial of final permit, permit modifications, or renewals; 

(e) Authorization for a source to operate without an operating permit by limiting its 

potential to emit to levels below those that would require the source to obtain an 

operating permit; 

(f) Periodic summaries of enforcement order and changes made without revising the 

permit pursuant to WAC 173-401-722. 

State effective: 12/11/93; EPA effective: 7/22/96

WAC 463-39-120 MONITORING AND SPECIAL REPORT. 

The department of ecology or its designee shall conduct a surveillance program to monitor the 

quality of the ambient atmospheres to concentrations and movements of air contaminants in 

accordance with the requirements of chapters 173-400, 173-401, 173-406, and 173-460 WAC. 

As a part of this program, the director of the department of ecology or an authorized 

representative of the director may recommend that any source under the jurisdiction of the 

council conduct stack and/or ambient air monitoring, and to report the results to the council and 

department of ecology. 

State effective: 9/21/95; EPA effective: 7/22/96

WAC 463-39-135 CRIMINAL PENALTIES. 

Persons in violation of this chapter may be subject to the provisions of chapter 80.50 RCW. 
Table 2 – Energy Facilities Site Evaluation Council Regulations – page 36 

State effective: 8/6/79; EPA effective: 7/22/96

WAC 463-39-170 CONFLICT OF INTEREST. 

No member of the council shall have received, or has during the previous two years received, a 

significant portion of his income directly or indirectly from permit holders or applicants for a 

permit under the jurisdiction of this council. 

(1) For the purposes of this section, the term "member" includes any individual who has 

or shares authority to approve permit applications or portions thereof, either in the first 

instance or on appeal. 

(2) For the purpose of this section, the term "permit holders or applicants for a permit" 

shall not include any department or agency of a state government. 

(3) For the purposes of this section, the term "significant portion of his income" shall 

mean ten percent of gross personal income for a calendar year, except that it shall mean 

fifty percent of gross personal income for a calendar year if the recipient is over sixty 

years of age and is receiving such portion pursuant to retirement pension or similar 

arrangement. 

(4) For the purposes of this section, the term "income" includes retirement benefits, 

consultant fees and stock dividends. 

(5) For the purposes of this section, income is not received "directly or indirectly from 

permit holders or applicants for a permit" if it is derived from mutual fund payments or 

from other diversified investments over which the recipient does not know the identity of 

the primary source of income. 

State effective: 8/6/79; EPA effective: 7/22/96

WAC 463-39-230 REGULATORY ACTIONS. 

The council may take any of the following regulatory actions to enforce this chapter to meet the 

provisions of RCW 80.50.040 or 70.94.422. 

(1) Enforcement Actions—Notice of Violation. At least thirty days prior to the 

commencement of any formal enforcement action under RCW 70.94.430 and 70.94.431 (1) 

through (7), the council shall cause written notice to be served upon the alleged violator or 

violators. The notice shall specify the provision of this chapter or rule or regulation alleged to be 

violated and the facts alleged to constitute a violation thereof, and may include an order that 

necessary corrective action be taken within a reasonable time. In lieu of an order, the council 

may require that the alleged violator or violators appear before it for the purpose of providing the 
Table 2 – Energy Facilities Site Evaluation Council Regulations – page 37 

council information pertaining to the violation or the charges complained of. Every notice of 

violation shall offer the alleged violator an opportunity to meet with the council prior to the 

commencement of enforcement action. 

(2) Civil Penalty.

(a) All penalties assessed as the result of air emission violations shall be consistent with 

RCW 70.94.332, 70.94.430, 70.94.431(1) through (7), and 70.94.435. Any person who 

violates any of the provisions of chapter 70.94 RCW may incur a civil penalty in an 

amount as set forth in RCW 70.94.431. Each such violation shall be separate and distinct 

and, for a continuing violation, each day's continuance shall be a separate and distinct 

violation. 

Any person who fails to take action as specified by an order issued pursuant to this 

chapter shall be liable for a civil penalty as set forth by RCW 70.94.431 for each day of 

continued noncompliance. 

(b) Penalties incurred but not paid shall accrue interest, beginning on the ninety-first 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 thirty-first day 

following final resolution of the appeal. 

The maximum penalty amount established in RCW 70.94.431 may be increased annually 

to account for inflation as determined by the state office of economic and revenue 

forecast council. 

(c) Each act of commission or omission which procures, aids, or abets in the violation 

shall be considered a violation under the provisions of this section and subject to the 

same penalty. The penalties provided in this section shall be imposed pursuant to RCW 

70.94.422. 

(d) All penalties recovered under this section by the council shall be paid into the state 

treasury and credited to the air pollution control account established in RCW 70.94.015. 

(e) In addition to other penalties provided by this chapter, persons knowingly 

under-reporting emission or other information used to set fees, or persons required to pay 

emission or permit fees who are more than ninety days late with such payments may be 

subject to a penalty equal to three times the amount of the original fee owed. 

(3) Assurance of Discontinuance. The chair, or his/her authorized representative, may accept 

an assurance of discontinuance of any act or practice deemed in violation of this chapter. Any 

such assurance shall specify a time limit during which discontinuance is to be accomplished. 

Failure to perform the terms of any such assurance shall constitute prima facie proof of a 

violation of this chapter which make the alleged act or practice unlawful for the purpose of 

securing an injunction or other relief from the superior court. 
Table 2 – Energy Facilities Site Evaluation Council Regulations – page 38 

(4) Restraining Orders, Injunctions. Whenever any person has engaged in, or is about to 

engage in, any acts or practices which constitute or will constitute a violation of any provision of 

this chapter, the council, after notice to such person and an opportunity to comply, may petition 

the superior court of the county wherein the violation is alleged to be occurring or to have 

occurred for a restraining order or a temporary or permanent injunction or another appropriate 

order. 

(5) Emergency Episodes. The council may issue such orders as authorized by chapter 80.50 

RCW, whenever an air pollution episode forecast is declared. 

(6) Compliance Orders. The council may issue a compliance order in conjunction with a 

notice of violation. The order shall require the recipient of the notice of violation either to take 

necessary corrective action or to submit a plan for corrective action and a date when such action 

will be initiated. 

State effective: 8/26/94; EPA effective: 7/22/96