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

WAC 463-39 -- GENERAL AND OPERATIN G PERMIT REGULATIONS FOR AIR

POLLUTION SOURCES

WAC 463-39-005 Adoption by Reference.

(1) The energy facility site eval uation council adopts the following sections or subsections of chapter 173-400 WAC by reference.

Citation Title State

Effective

Date Explanation

Washington Administrative Code, Chapt er 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 9/20/93Table 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 emi ssions 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 particul ar date shall equal the average rate, in tons per year, at which the emissions unit actually emitte d the pollutant during a two-year period which precedes the particular date and which is repr esentative of normal source operation. Ecology or an authority shall allow the use of a different time period upon a determina tion that it is more representative of normal source operation. Actu al emissions shall be calculated using the emissions unit's actual operating hours, productio n rates, and types of materials processed, stored, or combusted during the selected time period.

(b) Ecology or an authority may presume that so urce-specific allowable emissions for the unit are equivalent to the actual em issions of the emissions unit.

(c) For any emissions unit which has not begun norma l 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 visibi lity impairment which interferes with the management, protection, preservati on, or enjoyment of the visito r'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, inte nsity, duration, frequency, and time of visibility impairment,

and how these factors correlate wi th (a) times of visitor use of the Federal Class I area, and (b) the frequency and timing of natura l conditions that redu ce 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 ch aracteristics and duration as is, or is likely to be, injurious to human health, plant or animal life, or property, or whic h unreasonably interferes with enjoyment of life and prope rty. For the purposes of this chapter, air pollution shall not include air contaminants emitted in complia nce 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 federa lly 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 conc entration, exposure time, and frequency of occurrence of air contaminant(s) in the ambient air which shall not be exceeded.

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

coextensive with the boundaries of one or more counties.

(9) "Best available control technology (BAC T)" means an emission limitation based on the maximum degree of reduction for each air po llutant subject to re gulation 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, ta king 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 fu els, or treatment or innovative fuel combustion techniques for control of each such pollutant. In no event sh all application of the "best available control technology" result in emissions of any polluta nts which will exceed the emissions allowed by any applicable standard under 40 CFR Part 60 an d 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 comp ly with this paragraph shall not be allowed to increase above levels that would have been requ ired under the definition of BACT in the Federal Clean Air Act as it existed prior to enactme nt 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 thro ugh the application of the best system of continuous emissionTable 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 ba sis, taking into cons ideration the technology available, the costs of complia nce, the energy and nonair quali ty environmental impacts of compliance, any pollution control eq uipment in use or in existen ce at the source, the remaining useful life of the source, and th e degree of improvement in visibi lity 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 decreas e 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 area s 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" mean s units using combustion for waste disposal, steam production, chemical recovery or other pr ocess 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 co ntinuous program of act ual on-site construction of the source, to be completed within a reasonable time; or

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

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

construction of the source to be co mpleted 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 to tal amount of pollutant discharged.

(17) "Director" means director of the Washingt on 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 at tempts to affect the concentration of a pollutant in the ambient air other than by the us e 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 pursuan t 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 prom ulgated under the FCAA or chapter 70.94 RCW.

(23) "Emissions unit" means any part of a stationa ry source or source which emits or would have the potential to emit any pollutant subjec t to regulation under the FCAA, chapter 70.94 or

70.98 RCW.

(24) "Excess emissions" means emissions of an ai r 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 he ight 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 ex isting stationary facility the term "building, structure, facility, or installa tion" means all of the pollutant-e mitting 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 pe rsons under common control). Pollutant-emitting

activities shall be consid ered as part of the same major group (i.e., which have the same two digit code) as described in the Standard Industrial Cla ssification Manual, 1972, as amended by the 1977 Supplement.

(27) "Federal Clean Air Act (FCAA)" means the Fe deral 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 au thority over such lands.Table 2 – Energy Facilities Site Evaluation Council Regulations – page 6 (29) "Fossil fuel-fired steam generator" means a de vice, 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 emi ssion made airborne by forces of wind, man's activity, or both. Unpaved roads, construction si tes, and tilled land are ex amples 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 rela ted 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)" m eans 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, unle ss the owner or operator of the proposed new or

modified source demonstrates that su ch 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 app lication of this term permit a proposed new or modified source to emit any pollutant in excess of the amount allowa ble under applicable new source performance

standards.

(38) "Mandatory Class I federal area" means any ar ea 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 cha nge in or change in the method of operation of a major stationary source th at would result in a significant net emissions increase of any pollutant subject to regulation unde r the FCAA. Any net emissions increase that is considered significant for volatile organic co mpounds 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, re pair, 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 purs uant to the Federal Power Act;

(c) Use of an alternative fuel by reason of an or der or rule under sec tion 125 of the FCAA, 42 U.S.C. 7425;

(d) Use of an alternative fuel at a steam generati ng 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 federa lly enforceable permit condition which was established after December 12, 1976, in a preventi on of significant deterioration permit or notice of construction approval; or

(ii) The stationary source is approved to us e under any federally-e nforceable 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 de terioration 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; orTable 2 – Energy Facilities Site Evaluation Council Regulations – page 8 (ii) Is located in a "marginal" or "moderate" oz one nonattainment area and which emits or has the potential to emit one hundred tons per year or more of volatile orga nic compounds or oxides of nitrogen.

(b) Any stationary source (or gr oup of stationary sources) which:

(i) Is located in a "serious" carbon monoxide nona ttainment 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 (PM 10 ) nonattainment area and which emits or has the potential to emit seventy t ons per year or more of PM 10 emissions.

(c) Any physical change that w ould occur at a stationary sour ce 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 statio nary source shall not be incl uded in determining whether it is a major stationary source, unless the sta tionary 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 or e reduction plants;

(vii) Primary copper smelters;

(viii) Municipal incinerators capable of charging more than two hundr ed 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 whic h, 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 stationa ry source is a major stationary source, the term "building, structure, facility, or insta llation" means all the po llutant-emitting activities which belong to the same industrial grouping, are located on one or more contiguous or adjacent properties, and are under the c ontrol 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 di git code) as described in the

Standard Industrial Cla ssification Manual, 1972, as amended by the 1977 Supplement.Table 2 – Energy Facilities Site Evalua tion Council Regulations – page 10 (41) "Masking" means the mixing of a chemically nonreactive control agen t with a malodorous gaseous effluent to change the perceived odor.

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

transfer of materials wi th no significant chemical or physical alteration.

(43) "Modification" means any physical change i n, or change in the method of operation of, a stationary source that increases the amount of a ny air contaminant emitted by such source or that results in the emissions of any air contaminan t not previously emitted. The term modification

shall be construed consistent with the defi nitions 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 occurr ing phenomena that reduce visibility as

measured in terms of visual ra nge, 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 particul ar change or change in method of operation at a source; and

(ii) Any other increases and decreases in actu al 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 o ccurs between the date ten ye ars 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 betw een the date of issuance of the ERC and the date when a particular change becomes ope rational shall be counted against the ERC.

(ii) Ecology or the authority has not relied on it in issuing any perm it 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 pursuan t 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 Evalua tion 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 leve l 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 si gnificance 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 ha s 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 furt her 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 partic ular 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 result s 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)" mean s the federal regulations set forth in 40

CFR Part 60.

(49) "Nonattainment area" means a clearly deli neated geographic ar ea 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 applic ation to permit c onstruction 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 Evalua tion Council Regulations – page 12 (52) "Open burning" means the combustion of mate rial in an open fire or in an outdoor container, without providing for the control of co mbustion or the control of the emissions from the combustion. Wood waste disposal in wigw am 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 li mited to RCW 70.94.332, 70.94.152, 70.94.153, and 70.94.141(3), and includes, where used in the generi c sense, the terms order, corrective action order, order of approval, and regulatory order.

(54) "Order of approval" or "approval order" m eans a regulatory order issued by ecology or the authority to approve the noti ce of construction a pplication for a proposed new source or modification, or the replacement or substantial alteration of control t echnology at an existing stationary source.

(55) "Particulate matter" or "particulates" mean s any airborne finely divided solid or liquid material with an aerodynamic diamet er smaller than 100 micrometers.

(56) "Particulate matter emissions" means all finely divided solid or liqui d 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 c ontaminant 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 refe rence 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 so lid 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 A ppendix 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 sour ce 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 mate rial combusted, stored, or processed, shall be treated as part of its design onl y 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 Evalua tion Council Regulations – page 13 (62) "Prevention of significant deterioration (PSD)" means th e 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 perpendicula r to a line between the ce nter 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 cont rol 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 av ailable considering technologi cal 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 qual ity, the availability of additional controls, the emission reduction to be achieved by additional c ontrols, the impact of additional controls on air quality, and the capital a nd operating costs of the additional controls. RACT requirements for any source or source category shall be adopted on ly after notice and opport unity 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 applicab le provision of chapter 70.94 RCW, or the rules adopted thereunder, or, for sources regulated by a local air authority, th e regulations of that authority.

(67) "Significant" means, in reference to a net em issions increase or the potential of a source to emit any of the following pollutants, a rate of em ission equal to or greate r than any one of the following rates:

Pollutant Tons/Year

Carbon monoxi de ............................... 100

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

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

Particulate matt er (PM) ......................... 25

Fine particulate matter (PM 10 ) .............. 15

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

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

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

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

Hydrogen sulfide (H 2 S) ........................ .10

Total reduced sulfur (including H 2 S ) ... 10

Municipal waste combustor organics. 0.0000035(measured as total tetra-through octachlorinated dibenzo-p-dioxins and dibenzofurans

Municipal waste combustor metals (measuredTable 2 – Energy Facilities Site Evalua tion Council Regulations – page 14 Pollutant Tons/Year

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

Municipal waste combustor acid gases (measured

as SO 2 and hydrogen chloride) ............. 40

(68) "Significant visibility impairment" means visibi lity impairment which interferes with the management, protection, preservation , or enjoyment of visitor visu al experience of the Class I

area. The determination must be made on a case-by-case basis, ta king into account the geographic extent, intensity, durat ion, frequency, and time of the visibility impairment, and how

these factors correlate with the time of visitor us e 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 adja cent properties, and are under the control of the same person or persons under common control, w hose activities are anci llary to the production of a single product or functionally related groups of products. Ac tivities shall be considered ancillary to the production of a single product or functionally rela ted group of products if they belong to the same major group (i.e ., which have the same two di git code) as described in the

Standard Industrial Cla ssification 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 s ource designed to emit solids, liquids, or gases into the air, including a pipe or duct.

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

elevation at the base of the stack.

(73) "Standard conditions" mean s a temperature of 20 ° (68 ° F) and a pressure of 760 mm (29.92 inches) of mercury.

(74) "Stationary source" means any building, structur e, 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 pr oducing sulfuric acid by the contact process by burning elemental sulfur, alkylation aci d, hydrogen sulfide, or acid sludge.

(76) "Total reduced sulfur (TRS)" means the sum of the sulfur compounds hydrogen sulfide, mercaptans, dimethyl sulfide, dimethyl disulf ide, and any other organic sulfides emitted and measured by EPA method 16 or an approved eq uivalent method and expressed as hydrogen

sulfide.

(77) "Total suspended particulate" means par ticulate matter as measured by the method described in 40 CFR Part 50 Appendi x B as in effect on July 1, 1988.Table 2 – Energy Facilities Site Evalua tion Council Regulations – page 15 (78) "United States Environmental Protection Agency (USEPA)" shall be referred to as EPA.

(79) "Visibility impairment" means any perceptibl e degradation in visibility (visual range, contrast, coloration) not caused by natural conditions.

(80) "Visibility impairment of Class I areas" mean s visibility impairment within the area and visibility impairment of any formally designa ted integral vista associated with the area.

(81) "Volatile organic co mpound (VOC)" means:

(a) Any compound of carbon, excluding carbon m onoxide, carbon dioxide, carbonic acid, metallic carbides or carbonates, and ammonium carbonate, which participates in atmospheric photochemical reactions. This includes any or ganic 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); tric hlorofluoromethane (CFC-11); dichlorodifluoromethane (CFC12); chlorodifluoromethane (CFC-22); trifl uoromethane (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-dichlo ro 1-fluoroethane (HCFC-141b); 1-chloro 1,1- difluoroethane (HCFC-142b); 2-ch loro 1,1,1,2-tetrafluoroethane (H CFC-124); pentafluoroethane (HFC-125); 1,1,2,2-tetrafluoroethane (HFC-134) ; 1,1,1-trifluoroethane (HFC-143a); 1,1- difluoroethane (HFC-152a); a nd perfluorocarbon compounds whic h fall into these classes:

(i) Cyclic, branched, or linear co mpletely fluorinated alkanes;

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

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

carbon and fluorine.

(b) For the purpose of determining compliance w ith emission limits, VOC will be measured by the appropriate methods in 40 CFR Part 60 Appe ndix A. Where such a method also measures compounds with negligible photochemical reacti vity, 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 neglig ibly-reactive compounds as VOC or at any time thereafter, ecology or the author ity may require an owner or ope rator to provide monitoring or testing methods and results demonstrating, to th e satisfaction of ecology or the authority, the amount of negligibly-reactive comp ounds 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 Evalua tion Council Regulations – page 16 All sources and emissions units ar e required to meet the emission standards of this chapter.

Where an emission standard listed in another chapter is applicab le 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 emissi ons from the individual emissions units, and the

relative contributions of the indi vidual emissions units to the common discharge are not readily distinguishable, then the emissi ons of the common stack must meet the most restrictive standard of any of the connected emissions units. Furt her, all emissions units are required to use reasonably available control tec hnology (RACT) which ma y be determined for some sources or source categories to be more stri ngent than the applicable emissi on limitations of any chapter of

Title 173 WAC. Where current controls are dete rmined 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 re quiring 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 th e 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 faci lities. This practice, except for testing and trouble shooting, is to be sc heduled 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 supp lies valid data to show that the presence of uncombined water is the only reason for th e opacity to exceed twenty percent.

(c) When two or more sources are connected to a co mmon 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 c ontrol of the owner(s) or operator(s) of the source in sufficient quantity to interfere unr easonably with the us e and enjoyment of th e property upon which the material is deposited.

(3) Fugitive emissions. The owner or operato r of any emissions unit engaging in materials handling, construction, demolition or any other operat ion which is a source of fugitive emission:

(a) If located in an attainment area and not impacting any nonattainme nt area, shall take reasonable precautions to prevent the release of air contaminants from the operation.Table 2 – Energy Facilities Site Evalua tion Council Regulations – page 17 (b) If the emissions unit has been identified as a significant contributo r to the nonattainment status of a designated nonattain ment area, shall be required to use reasonable and available control methods, which shall include any necessa ry 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 allo w the generation of any odor from any source which may unreasonably interfere with any othe r property owner's use and enjoyment of his property must use recognized good p ractice and procedures to re duce 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 detr imental 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 su lfur dioxide on a dry basis, corrected to seven percent oxygen for combustion sources, and ba sed on the average of any period of sixty consecutive minutes, except:

When the owner or operator of an emissions un it supplies emission data and can demonstrate to ecology or the authority that there is no feasible method of re ducing the concentration to less than one thousand ppm (on a dry basis, corr ected 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 author ity 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 requ est 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 an d 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 contri butor to a PM-10 nonattainment area sh all 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 Evalua tion Council Regulations – page 18 State effective: 9/20/93; EPA effective: 6/2/95

173-400-050 Emission Standards for Co mbustion and Incineration Units.

(1) Combustion and incineration emissions units must meet all requir ements 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 conditi ons (0.1 grain/dscf), except, for an emissions unit combusting wood derived fuels for the producti on 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 proc edures 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 pers on shall cause or permit emissions in excess of one hundred ppm of total carbonyls as measured by applicable EP A methods or acceptable procedures contained in "Source Test Manual - Procedures for Compliance Testing," state of Washington, department of ecology, on file at ecology. Inci nerators shall be operated onl y during daylight hours unless written permission to operate at other time s is received from ecology or the authority.

(3) Measured concentrations for combustion and incineration sources sh all be adjusted for volumes corrected to seven percent oxygen, exce pt when ecology or the authority determines that an alternate oxygen correc tion factor is more repres entative of normal operations

.

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

173-400-060 Emission Standards fo r General Process Units.

General process units are requi red to meet all ap plicable provisions of WAC 173-400-040 and, no person shall cause or permit the emission of pa rticulate material from any general process operation in excess of 0.23 grams per dry cubic mete r 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 st andards and making c ontrol technology determinations (e.g., BACT, RACT , LAER, BART) ecology and the authorities sh all consider any physical constraints on the ability of a source to comply with the applicable standard during startup or shutdown. Wh ere ecology or the authority determ ines that the s ource or source category, operated and maintained in accordance with good air pollution control practice, is not capable of achieving continuous compliance wi th an emission standard during startup orTable 2 – Energy Facilities Site Evalua tion Council Regulations – page 19 shutdown, ecology or the authority shall include in the standard appropriate emission limitations, operating parameters, or other crit eria to regulate the performan ce 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, eco logy and the authorities shall take into account any incremental incr ease in allowable emissions under startup or shutdown conditions authorized by an emission li mitation or other operating parameter adopted under this rule. Any emission limitation or ot her parameter adopted under this rule which

increases allowable emissions durin g startup or shutdown conditions ov er 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 sour ce, ecology or the author ity with jurisdiction over the source shall issue a regulatory order th at 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 jurisd iction 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 contaminan t under all ap plicable 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 limita tions, in addition to emission limitations.

(3) Any order issued under this section shall include monitori ng, recordkeeping and reporting requirements sufficient to ensure that the sour ce complies with any c ondition established under this section. Monitoring requirements shall use terms, test methods, units, averaging periods,

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

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

under WAC 173-400-171.

(5) The terms and conditions of a re gulatory 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 fr om 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 noti fication by the director of ecology, maintainTable 2 – Energy Facilities Site Evalua tion 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, PM 10 , sulfur dioxide, carbon mo noxide, 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 aver aging times for the applicable standards.

(2) Monitoring. Ecology shall cond uct a continuous surveillance pr ogram to monitor the quality of the ambient atmosphere as to concentr ations and movements of air contaminants.

As a part of this program, the director of ecol ogy or an authorized repres entative may require any source under the jurisdicti on 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 credentia ls, for the purpose of investigating conditions specific to the control, recovery, or releas e 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, excep ting 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 a pproved 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, departme nt of ecology, as of July 12, 1990, on file at ecology. The operato r 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 emi ssions 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. Owner s 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 hu ndred fifty million BTU per hour heat input; or

(B) Only gaseous fuel is burned.Table 2 – Energy Facilities Site Evalua tion Council Regulations – page 21 (ii) Sulfur dioxide, except where steam generato r capacity is less than two hundred fifty million BTU per hour heat input or if sulfur di oxide control equipment is not required.

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

conversion of sulfur dioxide cont inuous emission monitoring data.

(iv) General exception. These requirements do not a pply to a fossil fuel-fired steam generator with an annual average capacity f actor of less than thirty percen t, as reported to the Federal Power Commission for calendar ye ar 1974, or as otherwise demonstrated to ecology or the authority by the owne r(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 th e atmosphere of sulfur dioxide or other sulfur compounds.

(c) Fluid bed catalytic cracki ng units catalyst rege nerators at petroleum refineries.

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

(d) Wood residue fuel-fired steam generators.

(i) Opacity, except where steam generator capac ity is less than one hundred million BTU per hour heat input.

(ii) Continuous monitoring equipment. The requirem ents 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 require d to install continuous monitoring equipment under this chapter shall demonstr ate to ecology or the authority, compliance with the equipment and performance specifications and observe the reporting requireme nts contained in 40 CFR Part 51, Appendix P, Sections 3, 4 and 5, promulga ted 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 conduc ted at a frequency sufficient to establish the

emission levels over time and to mon itor deviations in these levels.

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

(i) Subject to a new source performance standard . These sources will be governed by WACTable 2 – Energy Facilities Site Evalua tion Council Regulations – page 22 173-400-115.

(ii) Not subject to an applicable emission standard.

(h) Monitoring system malfunctions. A sour ce may be temporarily exempted from the monitoring and reporting requirements of this ch apter 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 fu els 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. Ecolo gy or the authority may issue regulatory orders requiring controls to reduce the effect of such in creases. Cumulative changes in raw material or fuel of less than 0.5 percent incr ease 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 pr oving 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 a nd 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 repor ted to ecology or the authority as soon as possible. Other excess emissi ons shall be reported within thirty days after the end of the month during which the event oc curred 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 wr itten 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 o ccurs, that such bypass is necessary to preventTable 2 – Energy Facilities Site Evalua tion Council Regulations – page 23 loss of life, personal injury, or severe property damage.

(5) Maintenance. Excess emissions due to sc heduled 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 be tter operation and maintenance practices.

(6) Excess emissions due to upsets shall be consid ered unavoidable provided the source reports as required under subsection (3) of this se ction and adequately demonstrates that:

(a) The event was not caused by poor or inadeq uate design, operation, main tenance, or any other reasonably preventable condition;

(b) The event was not of a recurring pattern in dicative of inadequate design, operation, or maintenance; and

(c) The operator took immediate and appropriate co rrective action in a manner consistent with good air pollution control practic e for minimizing emissions during the event, taking into account the total emissions impact of the corr ective action, including sl owing or shutting down the emission unit as necessary to minimize emi ssions, 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 appli cation must be filed by the owne r or operator and an order of approval issued by ecology or an authority prio r 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 modi fication 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 eith er notify the applican t in writing that the application is complete or notify the applicant in writing of all additiona l information necessary,Table 2 – Energy Facilities Site Evalua tion Council Regulations – page 24 based upon review of information already supplied, to complete the applic ation. For a project subject to PSD review under WAC 173-400-141 a completeness determination includes a determination that the applica tion provides all information re quired to conduct PSD review.

(3) Final Determination

(a) Within sixty days of receip t of a complete application, ecol ogy or the authority shall either issue a final decision on the application or, for th ose 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 pers on seeking approval to co nstruct or modify a source that requires an operating permit may elect to integrate review of the operating permit application or amendment re quired under RCW 70.94.161 and the notice of construction application required by this sec tion. A notice of construction de signated for integrated review shall be processed in accordance with operati ng permit program procedures and deadlines.

(b) Every final determination on a notice of c onstruction application sh all be reviewed and signed prior to issuance by a prof essional engineer or staff unde r the direct supervision of a professional engineer in the empl oy 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 technolo gy determination included in a final order of approval to the RACT/BACT/LAER cl earinghouse maintained by EPA.

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

denial of a notice of constructi on application may be appealed to the pollution control hearings board as provided in chapter 43.21B RCW. Ecol ogy or the authority shall promptly mail copies of each order approving or denying a notice of cons truction 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 tem porarily at particular sites, the owner(s) or operator(s) shall be allowed to operate at the tem porary location without filing a

notice of construction a pplication, providing that the owner(s ) or operator(s) no tifies ecology or the authority of intent to operate at the new lo cation at least thirty days prior to starting the operation, and supplies sufficient info rmation to enable ecology or the authority to determine that the operation will comply with the emission stan dards for a new source, and will not a cause a violation of applicable ambient air quality stan dards and , if in a nona ttainment area, will not

interfere with scheduled attainment of ambient standards. The perm ission to operate shall be for a limited period of time (one year or less) a nd ecology or the authority may set specific conditions for operation during that period. A temporary source sha ll be required to comply with all applicable emission standards.

(6) Approval to construct or modify a stationary source shall beco me invalid if construction is not commenced within eighteen months after re ceipt of such approval, if construction is discontinued for a period of eight een months or more, or if cons truction is not completed withinTable 2 – Energy Facilities Site Evalua tion Council Regulations – page 25 a reasonable time. Ecology or the author ity may extend the eighteen-month period upon a satisfactory showing that an extension is justif ied. This provision does not apply to the time period between construction of th e approved phases of a phased cons truction project; each phase must commence construction within eightee n 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 Sour ces 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 approv al, which order shall contain such conditions as are reasonably necessary to assure the maintenan ce of compliance with th is chapter, if they determine that the proposed project satisfies each of the following requirements:

(1) The proposed new source or modification wi ll comply with all applicable new source performance standards, national emission stan dards for hazardous air pollutants, emission standards adopted under chapter 70.94 RCW and, for sources regul ated 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 propo sed 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 ambi ent 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 stationa ry source or the propo sed modification is a major modification, ecology or the authority has determined, based on review of an analysis performed by the source of a lternative sites, sizes, production processes, and environmental control techniques, that the benefits of the project signifi cantly 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 m odification is major for the contaminant for which the area is designated nonattainment, allo wable 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 offs ets must be sufficient to ensure that total allowable emissions from existing major stationa ry sources in the nonattainment area, new or modified sources which are not major stationa ry sources, and the proposed new or modified

source will be less than total actual emissions fr om existing sources (prior to submittal of the application) so as to represent (when consider ed together with the nona ttainment provisions of section 172 of the FCAA) reasonabl e further progress. All offs etting emission reductions mustTable 2 – Energy Facilities Site Evalua tion Council Regulations – page 26 satisfy the following requirements:

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

the reduction must be less than the current level of actual emissions of th at source or emissions unit(s). No emission reduction can be credite d for actual emissions which exceed the current

allowable emissions of the source or emissions unit(s) providing th e 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 ne t air quality benefit. For marginal ozone nonattainment areas, the total emissions of vol atile organic compounds or total emissions of nitrogen oxides are reduced by a ra tio of 1.1 to 1 for the area in which the new source is located. For any other nonattainment area, the emissions of fsets must provide a positive net air quality

benefit in the nonattainment area. Determinat ions 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 th e 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 stationa ry source or the propo sed modification is a major modification, the owner or operator has de monstrated that all ma jor stationary sources owned or operated by such person (or by any en tity 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, wi th all applicable emission limitations and standards under the Federal Clean Air Act, incl uding all rules contained in an EPA-approved state implementation plan.

(7) If the proposed new source is a major stationa ry source or the propo sed modification is a major modification for the purposes of th e 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 applicab le requirements of that chapter.

(9) If the proposed new source is a major stationa ry source or the propo sed modification is a major modification, ecology or the authority has co mplied with the visibility protection review requirements of 40 CFR 52.28(c) thr ough (e) except for (c)(4)(i), (g), and (h), as in effect on March 3, 1993, and determined that the project m eets the criteria set fort h in 40 CFR 52.28(g). For purposes of this subsection, definitions re ferenced in 40 CFR 52.28(b) are incorporated by reference, except that the term "visibility pr otection area" means any Class I area, and terms

defined in WAC 173-400-030 shall have the meanings defined in that section. References in 40Table 2 – Energy Facilities Site Evalua tion Council Regulations – page 27 CFR 52.28 to "the Administrator" shall mean the agency (either eco logy 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 fo r 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 NO
X , shall issue an order of approval, whic h order shall contain such conditions as are reasonably necessary to assure the maintenan ce of compliance with th is chapter, if they determine that the proposed project satis fies all of the following requirements:

(1) The proposed new source or modification wi ll comply with all applicable new source performance standards, national emission stan dards for hazardous air pollutants, emission standards adopted under chapter 70.94 RCW and, for sources regul ated 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 cons idered 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 modificati on at any location within a nonattainment area does not exceed the following levels for the pollu tant(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/m 3 2 mg/m 3

SO 2 1.0 ug/m 3 5 ug/m 3

- 25 ug/m 3 30 ug/m 3

PM 10 1.0 ug/m 3 5 ug/m 3

- - -

N O 2 1.0 ug/m 3

- - - -

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 stationa ry source or the propo sed modification is a major modification for purposes of the PSD program described in WAC 173-400-141, it meets all applicable requireme nts of that chapter.Table 2 – Energy Facilities Site Evalua tion Council Regulations – page 28 (5) If the proposed new source or the proposed m odification will emit any toxic air pollutants regulated under chapter 173

- 460 WAC, the source meets all app licable requirements of that

program.

(6) If, within the meaning of the PSD pr ogram 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 vi sibility protection revi ew requirements of 40 CFR 52.27(d) through (f), as in effect on Marc h 3, 1993, and has determined that the source would not cause an adverse impact upon visi bility. References in 40 CFR 52.27 to "the Administrator" shall mean the agency (either ec ology or the authority) processing the notice of construction application.

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

173-400-151 Retrofit Requirements fo r Visibility Protection.

(1) Determination of best availa ble retrofit technology (BART). Ecology shall identify and analyze each source which may reasonably be anticipat ed to cause or contribu te to impairment of visibility in any mandatory Class I area in Wa shington and any adjacent state and to determine

BART for the contaminant of concern and those a dditional air pollution cont rol technologies that are to be required to reduce impairment from the source.

(2) Initially defined BART. The ow ner(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 vi sibility impairment that is emitted at more than 250 tons per year. Each source for which BART is required mu st install and operate BART as expeditiously as possible, but in no case late r than five years after the condi tions 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 op erator required by this sec tion to install, operate, and maintain BART, may apply to the EPA administ rator 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 Evalua tion Council Regulations – page 29 (1) Issuance. Whenever a source is found to be in viol ation 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 specif ied time. The order shall contain a schedule for installation, with intermed iate benchmark dates and a final completion date, and shall constitute a compliance schedule. Require ments 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 am endment to the state implementation plan.

(3) Penalties for delayed compliance. Sources on a compliance schedule but not meeting emissions standards may be subject to penaltie s 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 ne w or modified source or emissions unit, if a significant net increase in emissions of any pollu tant regulated by state or federal law would result; or

(b) Any application or other pr oposed 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 hei ght of a stack which exceeds the GEP formula height and sixty-five meters, by means of a fl uid model or a field study, for the purposes of establishing an emission limitation; or

(g) An order to authorize a bubble; orTable 2 – Energy Facilities Site Evalua tion Council Regulations – page 30 (h) Notice of construction applicati on 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 ma de only after all information required by ecology or the authority has been submitted and after applic able preliminary determinations, if any, have been made. The cost of providi ng 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 app licant 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 descri ption of the proposal;

(ii) Advising of the location of the document s 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 c onstruction applications that are processed in coordination with an application to issue or modify an operati ng permit shall be conducted as provided in the state operating permit rule.

(3) Public comment. No final decision on any applicati on or action of any of the types described in subsection (1) of this section, sh all be made until the public comment period has ended and any comments received have been cons idered. 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 gove rnmental entity, any group or any person may request a public hear ing within the thirty -day period published as above. Any such request shall indicate the intere st of the entity filing it and wh y a hearing is warranted. EcologyTable 2 – Energy Facilities Site Evalua tion 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 oppor tunity for comment, such procedures may be used in lieu of the provi sions 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 shal l include consultation with local government in th e 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 a pply 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 modificati ons were carried out after December 31, 1970;

(b) Coal-fired steam electric generating units su bject to the provisions of Section 118 of the Federal Clean Air Act, which commenced opera tion before July 1, 1957, and for whose stacks construction commenced before February 8, 1974;

(c) Flares;

(d) Open burning for agricultural or silvicultu ral 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 construe d to limit the actual stack height.

(2) Prohibitions. No source may use dispersion t echniques or excess st ack height to meet ambient air quality standards or PSD increment limitations.Table 2 – Energy Facilities Site Evalua tion 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 fr om the ground level elevation at the base of the stack; or

(ii) H

g

. = H

. + 1.5L

where: H

g

. = "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 elevatio n 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 purpos es 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 kilo meter (1/2 mile).

(b) Dispersion techniques. Incr easing final exhaust gas plume rise by manipulating source process parameters, exhaust gas parameters, stac k parameters, or combining exhaust gases from several existing stacks into one stack; or other se lective handling of exhaust gas streams so as to increase the exhaust gas plume rise. This does not include:

(i) The reheating of a gas stre am, following the use of a pollution control system, for the purpose of returning the gas to the temper ature 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 cons tructed 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 th e 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 emi ssions control equipment or was carried out for sound economic or engineering reasons, and not primarily motivat ed 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 modelTable 2 – Energy Facilities Site Evalua tion Council Regulations – page 33 to verify the creditable stack height for the sour ce. This also applies to a source seeking credit

after the effective date of this rule for an increas e 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 fo r 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 ai r 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 s ubsection for conducting a field st udy or fluid model, means not greater than 0.8 km, except that the portion of a terrain feature may be co nsidered to be nearby which falls within a distance of up to ten times th e 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, whic hever 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 cr editable stack height under this subsection and means a maximum ground- level concentration owing to a significant

downwash effect which contributes to excursi on 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 gr ound-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 em ission rate of the source. "S ignificant 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 n earby structures or nearby terrain features which individually is at least forty percent in excess of the maximum c oncentration experienced

in the absence of such downwas h, 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 a ccording to atmospheric conditions or ambient concentrations of that pollutant is prohibite d, 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 Evalua tion Council Regulations – page 34 The energy facility site evalua tion council, under the authority ve sted 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 res ponsibilities for such a program through the establishment of standards for maximum pe rmissible emissions, the implementation of registration and notice requirements, provi sion 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 di stribution 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 sh all apply state-wide for those s ources under the jurisdiction of the energy facility site evaluation council. The pr ovisions of this chapter shall not apply to those facilities incorporated by reference in chapters 17 3-400, 173-401, 173-406, and 173-460 WAC which are not under the jurisd iction of the energy facili ty site evaluation council.

State effective: 9/21/95 EPA effective: 7/22/96

WAC 463-39-030 ADDITIONAL DEFINITIONS.

(1) "Council" means the energy facil ity site evaluation council.

(2) In addition to the definitions cont ained in WAC 173-400-030, 173-401-200, 173-406-101, "ecology" and "authority" shall be synonymous with the energy f acility site ev aluation 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 appr oval 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 so urce subject to chapter 80.50 RCW shall registerTable 2 – Energy Facilities Site Evalua tion 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 counc il 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 hear ings 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 th at 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 sha ll conduct a surveillance program to monitor the quality of the ambient atmospheres to concentrat ions and movements of air contaminants in accordance with the requirements of ch apters 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 ambi ent 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 Evalua tion 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 counc il shall have received, or has duri ng the previous two years received, a significant portion of his income directly or indi rectly from permit holders or applicants for a permit under the jurisdic tion of this council.

(1) For the purposes of this se ction, the term "member" in cludes any individual who has or shares authority to approve permit applicatio ns or portions thereof, either in the first instance or on appeal.

(2) For the purpose of this sec tion, 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 se ction, the term "significant po rtion of his income" shall mean ten percent of gross pe rsonal income for a calendar y ear, except that it shall mean fifty percent of gross personal income for a calendar year if the re cipient is over sixty years of age and is receiving such portion pur suant to retirement pension or similar

arrangement.

(4) For the purposes of this se ction, the term "income" includes retirement benefits,

consultant fees and stock dividends.

(5) For the purposes of this se ction, 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 caus e 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 violat or or violators appear before it for the purpose of providing theTable 2 – Energy Facilities Site Evalua tion 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 oppo rtunity to meet with the council prior to the

commencement of enforcement action.

(2) Civil Penalty.

(a) All penalties assessed as the result of air em ission 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 chapte r 70.94 RCW may incur a civil penalty in an

amount as set forth in RCW 70.94.431. Each such violation shall be se parate and distinct and, for a continuing violation, each day's con tinuance shall be a separate and distinct

violation.

Any person who fails to take action as specifi ed 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, inte rest 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 prov isions of this secti on and subject to the same penalty. The penalties provided in th is section shall be imposed pursuant to RCW

70.94.422.

(d) All penalties recovered under th is section by the council sha ll be paid into the state treasury and credited to the air pollution control account esta blished in RCW 70.94.015.

(e) In addition to other penalties prov ided 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 nine ty days late with such payments may be subject to a penalty equal to three time s the amount of the original fee owed.

(3) Assurance of Discontinuance. The chair, or his/her author ized representative, may accept an assurance of discontinuance of any act or prac tice 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 assu rance shall constitute prima facie proof of a violation of this chap ter which make the alleged act or practice unlawful for the purpose of securing an injunction or other re lief from the superior court.Table 2 – Energy Facilities Site Evalua tion 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 allege d to be occurring or to have occurred for a restraining order or a temporary or permanent in junction 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 complian ce order in conjunction with a

notice of violation. The order sha ll require the recipient of the notice of viola tion either to take necessary corrective action or to submit a plan fo r corrective action and a date when such action

will be initiated.

State effective: 8/26/94; EPA effective: 7/22/96